Cross-Strait Judicial Assistance Agreement Criticized

May 16, 2009 3:00 am Last Updated: May 18, 2009 11:02 pm

During a press conference held by a Taiwan legislator and two scholars,Legislator Tien Chiu-Chin criticized the recent Mutual Judicial Assistance Agreement between Taiwan and China. This agreement, signed on April 26 by top negotiators, is scheduled to take effect automatically within 60 days.

With concerns that Taiwanese investors would be victimized by the current legal system in China, the group contends that the agreement should be submitted to Taiwan’s Legislative Yuan for deliberation. They point out that the agreement is facing serious controversy and thus should not take effect automatically.

Led by Legislator Tien Chiu-Chin, the press conference entitled “Fake Law Enforcement; Real Robbery” was held at the Legislative Yuan on May 13. Also present were Kao Wei-Pang, Director of the Victims of Investment in China Association (VICA) and Chiu Tai-San, former Vice Chairperson of the Mainland Affairs Council.

Dr. Kao Wei-Pang stated, “The Mutual Judicial Assistance Agreement will only help the mainland to legitimize its harassment of Taiwanese investors.

Kao gave an example. Taiwanese businessman Cai Gao-Te invested over US$10 million to construct a factory in Beijing 15 years ago. The mainlanders not only unlawfully occupied the factory, they also leased his properties to others. This March, Cai received a Chinese civil court ruling requiring payment of a construction fee plus interest of 600,000 yuan (approximately US$87,877).

Chiu Tai-San stated that there are two aspects to consider in fighting such crimes. First, the Chinese communist regime’s attitude is often a determinant in whether or not the agreement indeed facilitates a smooth repatriation of major economic criminals from China. 

Second, in order for a civil ruling to be recognized, and a mutual agreement obtained in international communities, the legal environment, the quality of the trial, and the quality of justice between the two countries would have to be comparable.

Integrity of Chinese Judicial System Questioned

Chui emphasized that the mainland is under an authoritarian party rule. Because civil lawsuits are finalized at the provincial level, the judicial system administrator has local protection. The government can intervene in both the administration of justice and the courts since both are under the supervision of the Party Secretary.

In addition, the quality of judges and prosecutors is questionable. In mainland China, more than 50 per cent of the judges and prosecutors do not have a college degree. The state examination of judges and prosecutors did not exist until 2002. It is not difficult to imagine the poor quality of the Chinese judicial system.

All mechanisms and laws relevant for a market economy were gradually introduced in mainland China after 1995. Typically, training in the new laws takes place in less than 2 years, and sometimes only 6 months. The real rights law was established only recently in 2007. Law enforcement officers lack the concepts and disciplines necessary for ownership protection in a market economy.

Tien Chiu-Chin questioned the Agreement with a counter example. When a court in Taiwan finds the mainland businessman at fault and requests the Chinese communist regime to implement the ruling, will the regime conduct the ruling accordingly? In fact, the regime might make its evaluation based on its political interests. Many difficulties are surely foreseeable. Tien Chiu-Chin called on the KMT to stand up to mainland China and disallow the automatic implementation of the agreement. Major decisions, he argued, need to be sent to the Legislative Yuan of Taiwan for consideration.

Chiu Tai-San recounted his introduction to the Vice-President of an Intermediate People’s Court during a trip to China. This man had been a political warfare officer in the past, but because he lacked a college degree, he was not qualified for promotion. However, due to his Party allegiance, he was advanced to a court position after only 6 months of legal training. Another judge was previously a dancer in the entertainment business, but became a judge through her relationship with a Provincial Party Secretary.

Gao Wei-Pang noted that many cases receive a final ruling from the High Court, but are nonetheless neglected by the local government. There is law in China, but it is not consistently enforced. For example, the Taiwanese Investment Protection Law developed in 1994 was never implemented. For dozens of Taiwanese victims, the Chinese judicial system functions as an accomplice to murder. Its victims—Taiwan’s investors. Its means—the police system.

The Mainland Affairs Council of Taiwan has established that any civil judgment from the mainland relevant to Taiwan’s judicial system is subject to legal recognition by Taiwan before it can be implemented. In other words, if the court believes the mainland’s ruling violates public order and relevant provisions of customs, Taiwan’s judicial unit will not recognize or implement the mainland’s civil judgment.