By Jeffrey K.S. Hung and Sharon Chou, Partner and Senior Associate of Formosan Brothers, Attorneys-at-Law

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On May 25, 2021, the Central Epidemic Command Center (hereinafter the “CECC”) announced to extend the nationwide level 3 COVID-19 epidemic alert to June 14, 2021. And on June 7, 2021, the level 3 epidemic alert was further extended to June 28, 2021. During this time of severe pandemic impact, if you happen to have a case pending at the court, of what do you need to be aware?

According to the “Epidemic Prevention Guidelines for Courts in Regions under the Level 3 COVID-19 Epidemic Alert” published by the Judicial Yuan, relevant cases will proceed under the following principles:

I. In principle, all court session prior to June 28 shall be postponed:

From now on till June 28, all levels of courts shall postpone their session except those which are time-sensitive (e.g. the accused is in detention or the announcement of judgment), urgent (e.g. cases related to the compulsory measures or perpetuation of evidence), or necessary (those which are considered to be immediate attention). Other business or activities held inside or outside the courts and their subordinate institutions which are participated by outside personnel shall also be handled under the aforementioned principle.

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II. When holding a court hearing or handling other service related to the cases under the exceptional circumstances, it is recommended to conduct such a hearing remotely by using video conferencing (including extension court) and providing electronic case file and evidence in accordance with the law. With respect to this, the Judicial Yuan held its 194th meeting and passed the draft of the “Special Act on Judicial Procedures during Severe Epidemic Period, “ which is now being deliberated in the Legislative Yuan.

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How to proceed with a remote court session?

Referencing the epidemic prevention experience of foreign countries, the Judicial Yuan currently recommends that when holding a court hearings or handling other service related to the cases, remote video conferencing (including extension court) and electronic case file and evidence shall be used in accordance with the law. It also published the “Operational Handbook for Court Session via Remote Video Conferencing (in Court, Party, or Relevant Third Party versions)” and the “Reference Handbook for Court Handling Remote Video Conference Session” (see the Judicial Yuan’s website for details) as technical guidance and operational reference for remote video conference of court session (including extension court). The main points include:

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I. Hardware and software equipment: For software, “U Meeting” is used. It could be installed over the Internet or joined directly without installing the software. For hardware, one shall prepare a computer, cell phone, tablet or notebook computer (including a camera and a microphone) which supports “U Meeting”.

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II. Operational model: Operational models can be divided into: the “Standard Type,” where the judge holds the session in the main court and the parties attend the session from outside the court through remote video conferencing; the “Extension Court Type,” where the judge holds the session in a main court room and the parties (including the relevant third parties) attend the session in an extension court room inside the court; the “Mixed Type,” where the judge holds the session in a main court room, some parties attend the session in an extension court room inside the court, and some parties attend the session outside the court through remote video conferencing. The judge will decide among the three types which is the most suitable type depending on the circumstances of the case.

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III. Hearing procedure:

1. Log in to “U Meeting”: After the court clerk sends a notice of court session specifying the date of the remote court session, the clerk will contact the parties and relevant third parties by phone or by other suitable methods before the session and inform them the 9-digit U Meeting ID so that they can be approved for logging in to the U Meeting.

2. Turn to speak: When an attendant in a remote session would like to speak, he/she shall raise his/her hand or indicate such desire through other messaging methods. One shall speak only after the presiding judge approves. When speaking, an attendant shall first turn off the mute option. After speaking, the mute option shall be turned on and remain the microphone be turned off.

3. Presentation of documents or evidence: If the document is in an electronic form, it may be sent to the court in advance. During the session, it can be shown through the camera for the court to capture the image.

4. Submission of the affidavit: Along with the notice of the court session, the court will send a paper copy of the affidavit, and the witness shall read it aloud during the session and sign his/her name on it after such reading. The witness shall submit the affidavit during the session by the same way for presenting documents and evidence as aforementioned.

5. Signing of the transcript: If the transcript (e.g. a mediation transcript) needs to be signed by the parties, after the parties review the transcript sent by the court via technological equipment, the parties may sign on the page of the transcript prepared in advance by the court, or they may print the transcript directly and sign their names, and submit it to the court by the same way for presenting documents and evidence as aforementioned

6. How to exit the court session: After the judge pronounces the end of the court session, click the “hang up” button to exit the remote court session.

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IV. Other matters need attention:

1. Regardless of the type of remote court session, audio or video recording is prohibited. If any party violated, in addition to ordering the violating party to stop audio or video recording (including streaming) in accordance with Article 89 of the Court Organization Act which authorizes the presiding judge to maintain court order, the presiding judge may also order the violating party to delete such audio or video recording (including the audio or video recording for streaming purposes) in accordance with Paragraph 3 of Article 90 of the same, and impose a fine on the party.

2. In order to maintain court order and protect the rights of the attending party, no third party may be present around the party attending remotely except with the approval from the presiding judge.

3. Members of the general public who wish to sit in the court session shall comply with the epidemic prevention measures implemented by the competent authority pursuant to the Communicable Disease Prevention Act and contact the court in advance before attending.

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V. Electronic submission of pleadings or documents:

1. Civil complaints and supplementary pleadings may be submitted via the Internet: First, obtain an account number for submission through the “Judicial Yuan Electronic Service Verification System (E-filing system)” using one’s Citizen Digital Certificate, and log in through the “Judicial Yuan Electronic Litigation Document (Including initiation of an action Online) Service Platform” to submit the pleading.

2. In addition to the current regulations which allow submission of documents through technological equipment, the Judicial Yuan passed the draft of the “Special Act on Judicial Procedures during Severe Epidemic Period, “ in which criminal litigation documents, writs for detention or extension of detention, ruling, and documents related to the detention or extension of detention, investigation, trial, and enforcement procedure of juvenile protection matters may also be submitted through technological equipment; relevant provisions may also be applied mutatis mutandis to investigation procedures by prosecutors. With respect to civil or family matters, the court may submit the litigation documents through technological equipment. The Special Act further expands the range of documents which may be submitted through technological equipment.

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Due to the wide range of impact caused by this pandemic, people who have cases pending at the courts are recommended to take the initiative and confirm the next date of court session and the way to conduct the session with the court clerk for early preparation. However, it is undeniable that disputes in subsequent proceedings may arise from questions, such as, how to deal with the postponement caused by the pandemic regarding the matters of statute of limitation, time period for appeals from judgments, appeals from rulings, reconsiderations and rehearing/retrial, how the principle of public trials may be put into practice, what kind of remedy is afforded to the parties in response to the court’s choice of procedures for the court session, whether agents and defense attorneys are included when receiving the service by court through technological means, etc.. To take precaution of such possibilities, you are recommended to consult an attorney for your own protection if you are in any doubt.

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(This article was published in the Expert’s Commentary Column of the Commercial Times：https://view.ctee.com.tw/legal/30096.html）