11 September 2021
The President promulgated, via the President-Hua-Zhong-One-Yi-11000055351 Directive of June 16, 2021, Articles 234, 239, and 348 of the Code of Criminal Procedure as amended, which came into effect on the day of their promulgation. The amendments are highlighted below.
I. The provisions on procedures related to the criminalization of adultery are deleted to accommodate Judicial Interpretation No. 791.
To accommodate the gist of Judicial Interpretation No. 791, which decriminalizes adultery, the relevant procedural requirements under Article 234, Paragraph 2 of the Code of Criminal Procedure, which provides that “a complaint may not be filed for the offense against marriage and family specified in Article 239 of the Criminal Code except by a spouse,” and the proviso of Article 239, which provides that “if the offense is one specified in Article 239 of the Criminal Code, the withdrawal of a complaint against a spouse shall not be considered to be a withdrawal of a complaint against the other adulterer” are deleted.
II. The provisions on the scope of appeal are revised.
The appeal may be brought against part of the judgment; if fails to specify the part appealed, it is considered as an appeal in whole.
Relevant parts of the partial judgment appealed are considered as appealed.
1. The last part of Paragraph 1 of Article 348, a provision on presumed appeal that provides that “if [an appeal] fails to specify the part appealed, it is considered as an appeal in whole,” is deleted to respect the scope of appeal chosen by the parties to prevent them from being ambushed by adjudications.
2. For Paragraph 2 of Article 348, which provides that “relevant parts of the partial judgment appealed are considered as appealed,” the proviso that “this shall not apply if the related portion is not guilty, exempt from prosecution, case not entertained” is added in the amendments. After the amendments, the finding of not guilty, exempt from prosecution, case not entertained will no longer be deemed part of the appeal due to the appeal of other portions of the same judgment to fulfill the spirit of the adversary system.
3. Paragraph 3 of Article 348 is added to provide that “it may be specifically indicated that the appeal only applies to the portion of criminal penalty, confiscation or rehabilitative measures in a judgment.” If a party has no opinion on the court’s finding of facts in the case, the party may appeal against the portion of sentencing, confiscation, or rehabilitative measures separately so that the litigation burden of the party can be reduced.
4. To accommodate these amendments, Article 7-13 of the Law for the Implementation of the Code of Criminal Procedure is added as a transitional provision and specifically provides that the trial procedures for cases that have been pending with various courts before the effective date, or cases that have been concluded before the effective date, or have been pending with various courts but have not yet been concluded, and are filed for retrial or extraordinary appeal after the effective date shall still be subject to the provisions of Article 348 of the Code of Criminal Procedure before amendment in order to maintain procedural stability.
For further information, please contact:
Angela Wu, Lee Tsai & Partners
lawtec@leetsai.com
