By Snow Wang and Jerry Hung, Senior Partner and Associate of Formosan Brothers, Attorneys-at-Law

On July 22, the relevant bill for the “Citizen Judges Act” (hereinafter the “Act”) passed its third reading in a special meeting of the Legislative Yuan. Starting January 1, 2023, cases with at least a 10-year sentence or intentional criminal act that resulted in death of a person, except those pertaining to certain types of crime, will be tried by professional judges and “lay citizen” who have no professional legal background. The push to have citizens participate in criminal trials is one of the important judicial reform results of the 2017 Judicial National Affairs Conference.

In order to help citizen judges to have a fair, objective, and focused in the participation of the trials, the Act provides relevant protection for citizen judges (including substitute citizen judges and citizen judge candidates, hereinafter collectively as “citizen judges”), for example, protection of citizen judges’ personal data to prevent detrimental treatment from their employers. This is one of the seven key points of the Act: “participation with peace of mind; ensure official leave and per diem; protection of personal data and personal safety.”

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Personal Data Protection for Citizen Judges

With respect to personal data protection for citizen judges, Article 40 of the Act provides: Except where otherwise provided, the name, contact information, social activity, and any other information which may result in the direct or indirect identification of the citizen judge shall not be disclosed (Paragraph 1). With respect to the protection method, period, scope, processing, and use of a citizen judge’s personal data, the Act authorizes the Judicial Yuan and the Executive Yuan to stipulate (Paragraph 2).

In addition to the aforesaid protection of personal data, regarding those who have access to the personal data of other citizen judges from their participation of trials, the Act provides confidentiality obligations. For example, Paragraph 4 of Article 19 of the Act provides that the members of the substitute citizen judges review committee and other participants shall keep confidential of the personal data they have access or known to from performing their duties. In addition, Paragraph 5 of Article 26 of the Act provides that citizen judge candidates shall not disclose any confidential information learned during its selection process.  

In the event of the leakage of citizen judges’ personal data, pursuant to Article 98 of the Act, shall be sentenced to imprisonment or detention for not more than six months, or a fine of not more than NT$80,000.

The preceding part of the Act regarding personal data protection for citizen judges, in addition to assigning confidentiality obligations to certain types of personnel, also provides relevant criminal penalties and seems to be quite comprehensive. However, the Act does not provide the scope of the confidentiality obligations and the determination standards for breach of confidentiality obligations. If the scope of confidentiality obligations and the determination standards are uncertain, citizen judges may excessively self-censor their speech to avoid penalty due to the unknown scope of its confidentiality obligations. This means the provisions that seem to protect the rights and interests of the citizen judges may not be so effective when such legislation is enforced.

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Labor Rights Protection

Since a citizen is obligated to serve as a citizen judge, unless there are legitimate excuses for refusal, a person selected as a citizen judge must appear in court. As such, if the obligation to appear conflicts with the citizen judge’s regular job, the Act shall protect the citizen judge from suffering detriment imposed by their employer. Therefore, Article 39 of the Act provides: A citizen judge or substitute citizen judge during their term of service, or a citizen judge candidate during the period of notification to appear, shall be allowed by their employer to take official leaves, and the employer shall not base on an employee’s current or past service as a citizen judge to impose any detrimental disposition on such an employee.

Since the Act only provides that employers shall allow official leave, but as for atypical labors (e.g., for those who work the night shift, what shall be done if they are selected as a citizen judge?), how can such atypical labors arrange its pay leaves? And in the event where the worker’s right pursuant to the Labor Standards Act conflicts with their obligations to serve as a citizen judge, how shall such conflicts be handled?  Do circumstances described above pertain to “apparent difficulty in acting as a citizen judge or substitute citizen judge due to material need in daily living, work, or family life” prescribed in Subparagraph 8 of Paragraph 1 of Article 16 of the Act?  Can such circumstances become an excuse to refuse to be selected as a citizen judge? The Ministry of Labor must answer the above questions in the future.

There is still some time before the Act is officially enforced. We hope the competent authority plan for corresponding solutions for circumstances that may be encountered after the enforcement of the Act to increase the likelihood of citizen participation. The Act may, then, therefore, serve its purpose of reflecting a citizen’s rightful participation in public legal affairs, enhancing a citizen’s understanding and trust in the judicial system, and manifesting the concept of a citizen’s sovereignty.

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(This article was published in the Experts Commentary Column of the Commercial Times https://view.ctee.com.tw/legal/23032.html )

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