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Title: Law of Compensation for Wrongful Detentions and Executions CH
Amended Date: 2007-07-11
Category: Judicial Yuan(司法院)
Article 1
A person who is prosecuted under the Code of Criminal Procedure, Law of Military Trial, Law governing the Disposition of Juvenile Delinquency or Anti-Gangsters Statute, may seek State compensation pursuant to this Law under any of the following circumstances:
1. A person who has been in custody or detained before a " to be unwilling to prosecute " disposition is issued or a "not guilty" or "not entertained" judgment is rendered.
2. A person who has been in custody, detained, imprisoned or in compulsory services before a "not guilty" or "not entertained" judgment is rendered or the rehabilitative measures is vacated on retrial or interlocutory appeal.
3. A person who has been detained before a "not to hear the case" or "no protective measures and treatment" ruling is rendered.
4. A person who has been detained or in rehabilitation before a "no protective measures and treatment" ruling is rendered on retrial.
5. A person who has been detained before a "no imprisonment in a State correctional institution" final judgment is rendered.
6. A person who has been detained or imprisoned in a State correctional institution before a "no imprisonment in a State correctional institution" final decision is rendered.
If detention in custody, detained, or in compulsory services is not made in accordance with law or order may also seek State compensation pursuant to this Law.
Article 2
A person who seeks State compensation pursuant to the preceding Article
may not recover compensation if one of the following circumstances exists:
1. Except for the applicable excuse specified in Paragraph 1, Article 18 or Paragraph 1, Article 19 of the Criminal Law, there is evidence sufficient to prove that the claimant who is not prosecuted or found "not guilty" shall be prosecuted, sentenced or exempted for sentence.
2. A claimant who was in serious violation of public order or good morals, or who shall be subject to peace preservation measures.
3. A claimant who has been in custody, detained, or in compulsory services due to his intentional or grossly negligent Laws.
4. A claimant who is partially found "not guilty" but found "guilty" for the remaining part of combining punishments for several offenses.
5. If the claimants is not prosecuted for the reasons other than the Law is unpunishable or insufficient suspicion.
6. Except for claimant’s death, there is evidence sufficient to prove that the claimant who is exempt from prosecution or who is dismissed the case shall be prosecuted, sentenced or exempted for sentence.
7. Except for Subparagraph 8 of this provision, the claimant is not tried or in protective custody not for the reason exempted for protective custody.
8. Except for the reason of claimant’s insanity or death, there is evidence sufficient to prove that the claimant who is not tried or in protective custody shall be tried or in protective custody.
9. The claimant is ruled not to be imprisoned in State correctional institution based on Subparagraph 2, Paragraph 3 of Article 13 of the Anti-Gangsters Statute.
10. Except for statutory justifications specified in Subparagraphs 3 to 5, Paragraph 3 of Article 13 of the Anti-Gangsters Statute, there is evidence sufficient to prove that the claimant who is not imprisoned in State corrective institution shall be imprisoned in State corrective institution.
Article 3
Compensation for a wrongful custody, detention imprisonment, detention sentence, rehabilitation, corrective institution or compulsory services shall be at the rate of no less than Three Thousand New Taiwan Dollars (NT$3,000) and no more than Five Thousand New Taiwan Dollars (NT$5,000) per day based on number of days served.
Compensation for executed monetary penalties and for commutation to executed monetary penalties shall be paid twice the full amount plus statutory interest.
Paragraph 1 of this provision applies mutatis mutandis to compensation for commutation to labor services.
Confiscated, levied, surrendered or atoned objects shall be returned in full except those which should be destroyed. Confiscated, levied, surrendered or atoned objects already auctioned shall be compensated by twice the auction value plus statutory interest.
In addition to compensation for a wrongful detention pursuant to Paragraph 1 of this provision, compensation for a wrongfully executed death sentence, shall be made by buying a solatium no less than One Thousand New Taiwan Dollars (NT$1,000) and no more than Three Thousand New Taiwan Dollars (NT$3,000) per day of his remaining life calculated by the Nationals’ average life expectancy. The total amount of compensation for a wrongfully executed deceased shall no more than Thirty Million New Taiwan Dollars (NT$30,000,000) and no less than Ten Million New Taiwan Dollars (NT$10,000,000).
The number of days of custody or detention shall be calculated from the day of detention or arrest.
Article 4
A agency which renders the original ruling or a subsequent court which renders the ruling of "not guilty", "not entertained", "not to hear the case", "no protective measures and treatment", "no imprisonment in corrective institution", "revocation of compulsory services" shall have jurisdiction to adjudicate the claim of compensation. However, the local district court where the judicial court rendering the custody, detention, execution ruling is located or the claimant resides shall have jurisdiction to adjudicate the claim of compensation pursuant to Paragraph 2, Article 1 of this Law. The local Military trial Court (Cases) of criminal offenses shall have jurisdiction to adjudicate the claim of compensation under the Law of Military Trial.
When the local court-martial which renders the original ruling is abolished or reorganized, the court-martial or prosecuting office which takes over the claim shall have jurisdiction to adjudicate the claim of compensation under the Law of Military Trial.
Article 5
A claim for wrongful imprisonment compensation shall specify the following information in writing and shall be submitted to judicial agencies which have jurisdiction to adjudicate the claim:
1. the claimant’s name, gender, age, domicile or residence.
2. the legal representative’s name, gender, age, domicile or residence.
3. the subject mater of the claim.
4. facts and reasons of the claim; original copy or proof of the prosecutor’s "to be unwilling to prosecute" disposition, or a "not entertained", "not guilty", "not to hear the case", "no protective measures and treatment", "no imprisonment in corrective institution", or "revocation of compulsory services" ruling should be attached.
5. the agency with jurisdiction.
6. year, month, and date.
Article 6
The legal heir(s) of a wrongfully imprisoned victim may seek State compensation.
Except when the deceased victim is executed under the death penalty, a claim for wrongful imprisonment compensation by the victim’s legal heir(s) pursuant to the preceding provision may not Law against the express manifestation of the deceased victim or heir(s) with higher priority.
Article 7
When an heir of a wrongfully imprisoned victim files a claim of compensation, he/she shall explain his/her relationship with the deceased and the existence of other heir(s) with same priority.
In case one of several heirs files a compensation claim, the effect of claim shall have the same effect as by all. When the heir who files the compensation claim wants to withdraw the claim, such a withdrawal must be agreed by all heirs.
Article 8
A claim of compensation shall be filed to the agency with jurisdiction within two years from the date of the final judgment of "not guilty", "not entertained", "not to hear the case", "no protective measures and treatment", "no imprisonment in corrective institution", "revocation of compulsory services" is rendered. However, a claim of compensation pursuant to Paragraph 2, Article 1 of this Law shall be filed to the agency with jurisdiction within two years from the date of the victim’s custody, detention or execution is terminated.
Article 9
A wrongfully imprisoned victim may commission a legal representative to file a claim of compensation.
The legal representative shall provide a power of attorney in writing.
Except acting on the specific request of withdrawal from the claimant, the legal representative may not withdraw the claim of compensation.
Article 10
The claim of compensation may be withdrawn before the adjudicating agency renders the decision.
Once the claim of compensation is withdrawn, the claimant may not file the same claim of compensation again.
Article 11
When a claimant is ordered to rectify the procedural defect of the claim but fails to do so within a specified deadline, the agency with jurisdiction to adjudicate the claim shall dismiss the claim of compensation.
Article 12
If the adjudicating agency finds the claim has merit, the agency shall award the compensation to the claimant. However, if the adjudicating agency finds the claim has no merit, the agency shall dismiss the claim.
The adjudicating agency stated in the preceding paragraph shall render a decision and serve the decision to the Prosecuting Office of the Supreme Court and the claimant within three months after receiving the claim of compensation filed by the claimant.
The service of process set forth in the Code Of Criminal Procedure applies mutatis mutandis to the process of service set forth in Paragraph 1 of this provision.
Once the adjudicating agency has rendered the final decision, the claimant may not file another claim of compensation based on the same facts and cause (of action)of the wrongful imprisonment.
Article 13
The claimant who objects to the decision rendered by the adjudicating agency stated in Paragraph 1 of the preceding Article, may file an appeal for re-examination to the Wrongful Imprisonment Compensation Court of the Judicial Yuan.
When a decision of claim rendered by the adjudicating agency violates the provisions set forth in Articles 1 and 2 of this Law, the Prosecuting Office of the Supreme Court may also file a petition to the court of Compensation for Wrongful Detentions and Executions of the Judicial Yuan for judicial review of the decision.
Article 14
The presiding judges in the court of Compensation for Wrongful Detentions and Executions of the Judicial Yuan shall be appointed by the President of the Judicial Yuan and shall consist the Chief Justice and other Justices of the Supreme Court. The Chief Justice of the Supreme Court shall be the Chief Presiding Judge of the court of Compensation for Wrongful Detentions and Executions.
The personnel of the court of Compensation for Wrongful Detentions and Executions shall be assigned from the personnel of the Judicial Yuan.
Article 15
The claimant shall specify in writing the reasons for re-examination in the petition and file the petition to the court of Compensation for Wrongful Detentions and Executions through the adjudicating agency rendering the original decision within 20 days after the decision has delivered to the Prosecuting Office of the Supreme Court and the claimant.
Article 16
After the final decision against the claimant is made, the claimant, legal representative or legal heirs may file a petition for Re-trial to the affirming court if one of the following circumstances exists which is sufficient to adversely affect the outcome of the original decision:
1. The applicable law or statute is apparently in error.
2. The substance of the decision is inconsistent with the holding.
3. The evidence which the original decision relies upon is proved to be forged or altered.
4. The testimony, authentication or translation which the original decision relies upon is proved to be false.
5. The prosecutor, court-martial prosecutor or judge involving the original decision is proved to commit a malfeasance for the reason of the decision he/she renders or is disciplined for the reason of his/her malfeasance.
6. New material evidence is discovered.
Article 17
The claimant shall file the petition of retrial to the affirming court within fixed period of 30 days after the decision against the claimant is affirmed, but if the circumstance which allows retrial is occurred or made known to the claimant after the final decision is made, the claimant shall file the petition of retrial within fixed period of 30 days after the circumstance is made known to the claimant. However, if the circumstance which allows retrial is occurred or made known to the claimant 5 years after the final decision is made, the claimant may no longer file the petition of retrial.
Article 18
The claimant shall specify in writing the reasons for retrial in the petition and file the petition to the final affirming agency with a copy of the final affirming decision and evidence attached.
Article 19
If the adjudicating agency finds the petition of retrial has no merit, or the period of limitation for filing the petition of retrial has run, or the petition has procedural defect, the agency shall dismiss the petition. If the adjudicating agency finds the petition has merit, the agency shall set aside the original decision and renders a new decision.
Once the adjudicating agency has dismissed the petition of retrial, the claimant may not file another petition of retrial based on the same facts and reasons of the wrongful imprisonment.
Article 20
The petition of retrial may be withdrawn before the adjudicating agency renders the decision. Once the petition of retrial is withdrawn, the claimant
may not file another petition of retrial based on the same facts and cause (of action) of the wrongful imprisonment.
The claimant who wants to withdraw the petition of retrial shall file a petition of withdrawal in writing.
Article 21
The provisions set forth in Paragraph 2, Article 7 and Article 9 of this Law applies mutatis mutandis to the petition of retrial or withdrawal filed by the claimant pursuant to this Law.
Article 22
The funds for wrongful imprisonment compensation shall be defrayed by the National Treasury.
The State is entitled to seek indemnification from the civil servant who commits a malfeasance based on his/her intentional or grossly negligent Law, resulting the claimant’s claim of wrongful imprisonment compensation.
Article 23
The request of compensation payment shall be submitted to the adjudicating agency in writing with a copy of domicile certification attached. The request shall be submitted within one year after the decision of claim is served to the claimant. The claimant’s right to payment of compensation will be forfeited if the claimant fails to submit the request of payment before the specified deadline.
Article 7 of this Law shall apply mutatis mutandis to the request of compensation payment submitted by the legal heir pursuant to the preceding paragraph.
For a claimant of wrongful imprisonment compensation where the claim is made upon one and the same cause for which the wrongful detention claimant has already received compensation under other laws,the amount of the compensation shall be subtracted from the compensation payment awarded under this Law.
Article 24
The right to seek State compensation and the right to request compensation payment cannot be seized, transferred or pledged.
Article 25
For compensation claims with a petition of judicial review or retrial is pending, the adjudicating process of the claim shall be suspended until the ruling on the petition of judicial review or retrial becomes final.
When a ruling of "guilty" or "in protective measures and treatment" is rendered for claims stated in the preceding paragraph, a petition of judicial review or retrial shall be dismissed accordingly.
Article 26
When a petition of judicial review or retrial is filed after the decision to award compensation is granted, the payment of the claim shall be suspended until the ruling on the petition of judicial review or retrial becomes final.
When a ruling of "guilty" or "in protective measures and treatment" is rendered for a claimant in the preceding paragraph, the decision to award compensation shall be invalidated accordingly.
Article 27
When an award of compensation has already paid to a claimant under the circumstances prescribed in the Paragraph 2 of the preceding Article, the awarding agency shall order the claimant to refund the compensation payment.
The order made by the awarding agency in the preceding paragraph is self-executing.
Article 28
The awarding agency shall proclaim and publish the decision of awarding the compensation and syllabus and its summary in the Government gazette and newspaper of the place where the claimant resides.
Article 29
The payment of compensation, the refund of a fine ,or the return of things confiscated, shall be effected within 15 days after receipt of the claim for payment, refund, or return.
Article 30
The adjudicating rules governing the claim of wrongful imprisonment compensation shall be prescribed by the Judicial Yuan.
No fee shall be charged on the claimant for the legal proceedings of claim of wrongful imprisonment compensation.
Article 31
The Law shall apply mutatis mutandis to foreign nationals , provided, however, that this shall be applicable only when the nationals of Republic of China are entitled to the same right under international treaties or the law of the nationals of the respective countries.
Article 32
This Law applies to claims of compensation under the Law of Military Trial before the revised provisions of this Law come into effect on June 14th, 2007.
The claim of compensation pursuant to the preceding paragraph shall be filed within two years after the revised provisions of this Law come into effect on June 14th, 2007.
Article 33
For those claimants who may file a petition of retrial under Article 16 of revised provisions of this Law come into effect on June 14th, 2007, shall file the petition within two years after the revised provisions of this Law come into effect on June 14th, 2007.
Article 34
This Law comes into effect on the day of promulgation.