Extraordinary Appeal

An Extraordinary Appeal is a special

Extraordinary Appeal originates from the "Cassation in the Interest of the Public" clause in the French Constitution of 1791.^[2] The clause was later established with a wider scope of application in the Code of Criminal Procedure of 1808^[3] and 1959.^[4] Inspired by France, an "extraordinary appeal" clause was included in the Japanese Code of Criminal Procedure of 1880.^[5]

Countries

Japan

Extraordinary Appeal in Japan is established in part 5 of the Code of Criminal Procedure.^[6]

South Korea

Extraordinary Appeal in South Korea is established in chapter 2, part 4 of the Criminal Procedure Act.^[7]

Taiwan

Extraordinary Appeal in Taiwan is established in part 6 of the Code of Criminal Procedure, which was mostly inspired by the Japanese Code of Criminal Procedure. The application for an extraordinary appeal is an exclusive authority of the Prosecutor General of the Supreme Prosecutors Office. Thus, if any defendant or subordinate prosecutor considers a final court decision to be illegal, they must contact the Prosecutor General for approval. The motion for an extraordinary appeal itself does not halt any punishment sentenced by the original ruling.

A legal extraordinary appeal must fit the following conditions:^[8]

1. The court decision in question must be final,
2. The court decision in question is in contravention of laws, and
3. Must be filed by the Prosecutor General of the Supreme Prosecutors Office, to the Supreme Court.

If the extraordinary appeal is found to be unreasonable:

• The appeal is rejected, and the original court decision is not affected.

If the extraordinary appeal is found to be reasonable:

• If the original court decision is unfavorable to the defendant, and:
  • The violation of laws is within evidence acquisition and interpretation: reverse and remand the court decision in question. However, the receiving lower court must not issue a higher sentence than the old one in the reversed judgement, if still deemed guilty.
  • The violation of law is purely legal procedure error: Reverse the original decision and resentence the defendant.
• If the original court decision is favorable to the defendant, the Supreme Court should declare the court decision in question illegal (but not reversed), thus has no effect on the defendant.

The Extraordinary Appeal procedure in Taiwan is, indeed as its name, an extraordinary means of relief, but not the last resort for criminal procedure; a case can still be appealed to the Constitutional Court if related laws or the ruling itself is considered in violation of the Constitution.

References