Rescue Taiwan’s Judicial System

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Dinosaur judges are Public enemies

 

March 9 can be called As Taiwan’s Day of National Shame on Judicial

Judges Chiu-Hua Lin, Jin-Chang Zhung, and Shyi-Shyan Liu Were accused of crime of law-bending judgment

 

Right after the judgment of the attention-drawn Tai Ji Men case was announced by Taiwan’s Taichung High Administrative Court (THAC) on the morning of March 9 and the closed-door press conference was held after the trail on the afternoon of the same day, members of Tai Ji Men decided to take step to accuse the three judges, Chiu-Hua Lin, Jin-Chang Zhung, and Shyi-Shyan Liu, of the case to the Taichung District Court of crime of law-bending judgment. In the closed door press conference, the presiding judge Chiu-Hua Lin admitted that he is old and forgot to notice, though had read, the evidences which are favorable to Tai Ji Men.   

 

The term of dinosaur judges, refer to judges who are not having the same ideas as most people for the changes of public opinions and circumstances in society and make stupid and absurd judgments, has been popularly used in Taiwan in recent years. And the three judges used the information provided by the National Taxation Bureau (NTB) and stated in the untrue "indictment" which had been abandoned by the criminal court.  The judgment on March 9 has made the day as Taiwan’s Day of National Shame on Judicial, and political talk shows also trigger a heated discussion on this issue about setting mechanism to have dinosaur judges like them to leave the judicial system, specially at the time that Taiwan is talking up the reform of judicial system and over 84.6% citizens do not trust judges trials in a survey. Another research showed that the losing rate of the citizens in administrative action is 94% from 2011 to 2013. 

 

Administrative Courts were thus called courts of failing, and the Tai Ji Men tax case makes their reputation worse. On March 9, the THAC had 4 cases (including the one of Tai Ji Men) on trail and all of the 4 cases were rejected by the three judges. 

 

For years, both academics and practitioners have worked to change the worsening taxation system, and have held the Selection of the Best Annual Tax Law Decisions in Taiwan since 2012.  However, in past 6 years, none of decisions from the THAC is reviewed as the excellent decision.  It seems that people should pay more attention on their judicial quality. 

 

The following are issues that the three dinosaur judges have shown their quality of justice:

  • Over using their discretionary power of court: At the closed-door press conference which only invited few media and refused invoved party, attorneies, and scholors to attend, media asked why the court did not cite evidence favorable to the people, the presiding judge Chiu-Hua Lin answered that “yes, I did. But because I am old, even though I had read it, I forgot it soon.” Gee, our judges may forget to cite evidence favorable to the people! Do you believe if the trial is fair? So, the judges can use their discretionary power of court and not follow what the evidences show and make the decision by their own?   

 

  • Violating the principle of evidence: Jui-Chin Chiang, volunteer defense attorney for Tai Ji Men, indicated that the Explanation of Judicial Decision Reason shown on news release issued by the THAC who used of Prosecutor Hou's indictment materials which was found by the third instance criminal court of the case to be unacceptable in 2007, and not adopted a word offered by the Tai Ji Men (plaintiff).  What even more weird is that the court did not apply a bit of the testimony of the 7 witnesses who all recognized the fact of their presenting red envelops to the master as gifts when subpoenaed by judge Jin-Chang Zhuang

 

  • Violating the Guidelines for Avoidance of Conflicts of Interest: Since year 2005 and 2007, judge Chiu-Hua Lin and Jin-Chang Zhung had respectively made an unfavorable judgment against Tai Ji Men on the nature of red envelopes. The THAC accepted the case and appointed the two judges to carry out a substantive trial. When the plaintiff requested them to avoid, they ignored. And, what is more regret that they made a judgment while failed to conduct ex officio investigation on some issues of law. 

 

  • Whether the judges know the civil code? Pursuant to the criteria for gifts under Article 406 of the Civil Code, and the Income Tax Act stipulates clearly that assets obtained as gifts shall be exempt from income taxes. Under the Inheritance and Gift Tax Act, the taxpayers for gift taxes are givers (disciples) rather than receivers (masters). In addition, it should count on the presenters’ (disciples) true intention of presenting the red envelopes to their shifu. It is Chinese tradition to present a red envelop when the disciple is accepted by a shifu. Why it only taxes Tai Ji Men when none of tens of thousands martial arts or religious groups was taxed?

 

Scholars and experts have referred to this case as the 228 Tax Law Incident, which is a major milestone in the history of taxpayers' rights in Taiwan. The Tai Ji Men tax case against the NTB started in December 19, 1996, when Prosecutor Kuan-Jen Hou leveraged a false testimony of a tax collector to indict innocent individuals based on fabricated offenses of fraud and tax evasion. On one hand, he falsely treated the same amount as proceeds from fraud and requested the court to forfeit it. On the other hand, he asserted that as cram school tuitions and business revenues, referred such matter to the National Taxation Bureau (NTB) and requested a tax bill to be issued.

 

On July 13, 2007, a final criminal decision which acquitted Tai Ji Men and concluded there was no tax evasion was rendered. In the decision, red envelopes provided by Tai Ji Men dizi were found to be gifts rather than cram school tuitions, and there was no business operation, much less any tax issue. However, the tax matter has still dragged on even today.

 

The Tai Ji Men tax case is referred to as the 228 Incident of Tax Law by the legal community. According to Professor Chun-Chieh Huang, Member of the Presidential Office Human Rights Consultative Committee and Distinguished Professor of Financial and Economic Law National Chung Cheng University, this case, which was not resolved during the administration of six terms of presidency, is eligible for Guinness World Records. For years the Tai Ji Men case and the critical issues of the procedures involved have become a benchmark case in seminars in the legal circle.

 

  • The Control Yuan investigated this matter three times and identified this as a major human rights protection case.
  • In the first White Paper on Taiwan's Tax-related Human Rights released by the Chinese Association for Human Rights in 2011, the Tai Ji Man case was listed as one of the major unjust tax cases.
  • The unjust Tai Ji Men tax case was cited as an example in Shadow Report for civil human rights organizations to illustrate the chaotic tax collection situations and the seriously unbalanced tax collection and administrative remedy system in Taiwan. The report was submitted in November, 2012, to the international review committees of the two international human rights conventions and quickly received extensive attention of international human rights experts, who have pointed out that the tax agencies have seriously violated the human rights protected under the ICCPR.
  • In 2013, international human rights experts visited Taiwan and conducted the initial Taiwan report for the International Covenant on Civil and Political Rights and the International Covenant on Economic, Social and Cultural Rights. During the review meeting, the experts asked about the status of the unjust Tai Ji Men case and indicated in their conclusions that the administrative decisions of tax agencies seriously violated the human rights under Article 12, Paragraph 2 of the International Covenant on Civil and Political Rights. In 2017, international human rights experts again concern Tai Ji Men injustice tax case on the issue of perennial tax bills.
  • The media and scholars refer to this case as the "228 Incident in Taxation."
  • 600,000 Internet users voted this case as one of the top ten news on taxpayers’ rights.

 

Aggravating injustice from ignoring evidences

Pursuant to law for transitional justice

Ching-Chang Yen, Convener of the Committee of the Selection of the Best Annual Tax Law Decisions in Taiwan and former Finance Minister, indicated that when the judicial remedial procedure takes long for taxpayers, it is a kind of refusal of remedy in some circumstances. In 2005, in Tai Ji Men’s consolidated income tax case from 1991 to 1995, the Taipei High Administrative Court and the Supreme Administrative Court ruled in favor of Tai Ji Men and case was closed as THAC gave up the right to appeal. However, administrative court judges do not render a final decision but only set aside the decision on reconsideration without cancelling the original disposition and resulting in the strange phenomenon that the original disposition still exists when the taxpayer has won the litigation.

 

The development of Tai Ji Men injustice case from the authorities from 2005 to 2017. 

  • On July 13, 2007, a final decision was rendered to find the defendants not guilty of fraud, tax evasion, and violation of the Tax Collection Act. The decision also held that "sine the honorariums provided by the disciples to their master are both gifts in nature, they are tax-free income under Article 4, Subparagraph 17 of the Income Tax Act," and "items such as costumes for practicing qigong which were collectively procured by a few disciples on behalf of others were not profit-oriented sales" and had nothing to do with the grandmaster and his wife.  It finally cleared the names of Tai Ji Men's grandmaster and disciples.
  • In 2009, the Control Yuan released its investigation opinions identifying seven legal violations of tax agencies in the Tai Ji men tax case.
  • Tai Ji Men's grandmaster and disciples were awarded compensation for wrongful convictions in 2009。
  • As a result of the NTB's open survey conducted according to a resolution adopted during the inter-ministerial meeting of the Executive Yuan in 2012, 7401 pieces of evidence proved once again that the red envelopes were gifts. Meanwhile, the NTB also admitted that Tai Ji Men is not a cram school.
  • In November 2013, 33 legislators jointly introduced a proposal to request the Ministry of Finance to set aside illegal dispositions based on the above resolution of the inter-ministerial meeting of the Executive Yuan and the results of the open survey.
  • In 2015, the Taipei High Administrative Court set aside the NTB's tax dispositions and The Supreme Administrative Court directly rejected the NTB's appeal.

 

During the period from 2005 to 2017, the criminal courts, Control Yuan, Executive Yuan, Legislation Yuan and others clear the name of Tai Ji Men one after another, and  the NTB finally admitted in its official document that Tai Ji Men is not a cram school.  Even though there are more and more evidences shown on official document, the three judges Chiu-Hua Lin, Jin-Chang Zhung, and Shyi-Shyan Liu still ignored the truth and rendered a decision in favor of NTB. We are afraid that Taiwan’s judicial system is moving backwards by 20 years. It would be much harder when Taiwan’s government is pushing forward the issue of transitional justice.

 

Enemy of the People – Public Discontent toward Abettor of Human Rights

In accordance with statistics of the Administrative Enforcement Agency, delayed tax payment cases rose annually; in 2014, there were 4.769 million cases, that's on average 5.7 households out of 10 households; in 2015, there were 6.53 million cases, an average of 7.7 of out 10 households; in 2016, the number rose to 8.09 million cases, an average of 9 out of 10 households! That's an increase of 3.321 million cases within a short span of three years! How many suffered injustice? How can the people of Taiwan enjoy peace of mind?

 

Judge is the Enemy of the People – A Disgrace to the Justice System as Judges Not Following the Rule of Evidence

The case of injustice for Tai Ji Men originated from then prosecutor Kuan-Jen Hou's illegal prosecution. After a period of 10 years and 7 months and a grueling 9,570 minutes of investigation that spanned 14 judges and 58 court sessions, Tai Ji Men was cleared of all charges after three rulings on 13th July 2007: no fraud, no tax evasion, and no violation of the Tax Collection Act, and it was determined that any monetary gift from dizi to shifu was non-taxable in accordance with item 17 of article 4 of the Income Tax Act. Judge of the First Ruling, Tzi-Jung Chao, interrogated around 200 witnesses (including National Taxation Bureau officials). He ruled in favor of Tai Ji Men. Former Supreme Court Judge and Speaker Yao-Yuan Wen was the ruling judge of the second hearing, and he mentioned: “It is unthinkable that the National Taxation Bureau continues to issue tax bills based on the illegal indictment, and chooses to ignore the ruling of the Supreme Court!”

 

Enemy of the President – Harming the People with State Violence and Dishonoring the President

President Ing-Wen Tsai vehemently pushed for justice reform and implement transitional justice, with the promise that state violence will no longer exist. Three judges ignored rule of evidence and used illegal indictment materials from 21 years ago as basis of their ruling, an evident act of state violence as they prolong the injustice, harm the country, the people, and violate human rights!

 

Enemy of the Five Yuan – Incapacitating the Five Yuan and Despising Rule of Law

Taiwan is a country ruled by the five divisions of power. The separation of power is learned by students as early as grade five and well known throughout the country. Any government officer exceeding the legal rights is committing an offense and violates the governance system.

 

Enemy of the Control Yuan: The Control Yuan published their investigative reports in 2002 and 2009 regarding Tai Ji Men's injustice: Eight major violations by prosecutor Kuan-Jen Hou, and seven major violations of the National Taxation Bureau. The three judges simply ignore such findings!

 

Enemy of the Legislative Yuan: For 21 years, more than 250 legislative members had signed declarations, proposed, questioned and even convened press conferences, public hearings and coordination meetings that focused on the practices of the National Taxation Bureau that violated rule of evidence and due process. The members even petitioned to have the Bureau rescind the illegal tax bills!

 

Enemy of the Executive Yuan: On 9th December 2011, a cross-ministerial meeting was convened by the Executive Yuan that resulted not to use indictment material. Furthermore, the National Taxation Bureau was to publicly announce for two months an open investigation for the dizi of Tai Ji Men regarding the nature of monetary gift to shifu. The results of the investigation showed that all 7401 responses all stated that the monetary gift is indeed a gift in nature! Judge Chiu-Hua Lin stated that the bureau ignored evidences that are favorable to the people, and blatantly ignored the Executive Yuan!

 

Enemy of the Judicial Yuan: On 13th July 2007, the Criminal Court ruled after three hearings and determined that Tai Ji Men was clear of all charges, however, the National Taxation Bureau did not wait until the final judgment of the Court and issued illegal tax bill. This act was evidently illegal and couldn't uphold in a court of law! The invalid tax demands were ruled by 16 judges of Taipei High Administrative Court and the Supreme Court to be revoked in 2005, 2009, March of 2015 and July of 2015. However, the three judges all ignored such findings!

 

Enemy of the Examination Yuan: The role of the Examination Yuan is to administer national examinations and reprimands for public officials. In recent years, its effectiveness has been called into question. The absurd ruling of the three judges deepen people's mistrust on the selection process of the judges.

 

Enemy of the World – Violation of the Two Covenants and Despising Taxpayer's Human Rights

Shifu and the dizi of Tai Ji Men traveled across all five continents and spread the message of love and peace through cultural events on their own accord and expenses. Tai Ji Men won the international acclaim as an international goodwill ambassador. International community is paying close attention to the development of the case. Dr. Rene Wadlow, president of the UN/NGO Association of World Citizens (AWC), stated: “I have come across many organizations from around the world been prosecuted and denied of human rights, but I've never seen an organization like Tai Ji Men, one that continues to spread love and peace in Taiwan and around the world despite the tremendous injustice it faces.”

 

Toward the end of 2016, US Congress passed the the Global Magnitsky Human Rights Accountability Act, with the goal of imposing sanctions on corrupt government officials and safeguarding global human rights. Countries around the world are following similar path and curbing corrupt and immoral officials. Taiwan must not continue its downward spiral into oblivion, and distance itself from the international arena. In recent years, as people are more aware of their rights, judges with absurd rulings and denial of human rights will become enemies of the international community and receive proper justice.

    

Photo: Hundreds of Tai Ji Men dizi accused the three judges, Chiu-Hua Lin, Jin-Chang Zhung, and Shyi-Shyan Liu, of the case at the Taichung District Court of crime of law-bending judgment.

 

Source: 
WPN