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Proposal for “Law and Democratization in Taiwan and Korea: Twenty Years' Experience” to be held at UW Law School on October 19-20, 2007. The Rule of Law and Democracy as Movement Strategy: Explaining Judicial Independence Reform in Taiwan Chin-shou Wang Assistant Professor Department of Political Science and the Graduate Institute of Political Economy National Cheng Kung University [email protected] Is it possible that judges can play a leading role in pursuing judicial independence under a one-party-dominated regime? If the answer is yes, what are the characteristics of the reform-minded judges? What strategies will the judges carry out? How do the authoritarian parties respond to the reform-minded judges’ actions? In this paper, I will use the case of Taiwan to show that the judges can play a pivotal role in building an independent judiciary during political transition. The dynamics of Taiwanese judicial independence reform came from an unexpected source: the district judges at the bottom of the judicial hierarchy. The case of Taiwan is spectacular. First, Taiwan’s judiciary reflects the great influence of Japan’s and Germany’s. To some degree, we can put Taiwan in the civil law tradition. In this tradition, “judicial service is a bureaucratic career; the judge is a functionary, a civil servant; the judicial function is narrow, mechanical, and uncreative.” Second, like the case of Japan, the case of Taiwan presents a situation in which political parties and politicians control the judiciary and discipline its personnel not by strict appointment examination but by controls internal to the judiciary, particularly the control of promotion. The district judges at the bottom of the judicial hierarchy come under the most control. However, in the case of Taiwan, the main leaders and the main activists have been district-court judges. They not only initiate reform of the corrupt and controlled judiciary, but their reform strategies are very innovative, as well. For example, they have integrated the ideas of democracy and of the rule of law into reform-movement strategy to mobilize and persuade their fellow judges. Most important is that almost all of their reforms have been successful. Compared to other third-wave democracies, the case of Taiwan is unbelievable. It is very difficult to find that district-court judges in third-wave democratic countries initiate reform actions. Japan is a useful object of comparison. Japan’s judicial system has greatly affected Taiwan’s because Japan ruled Taiwan for fifty years. The court structure and the legal education in Japan are similar to those of Taiwan. However, the Japanese judges who joined the left and the reform-minded organization that was called the Young Jurists League often obtained positions in rural areas and received fewer and less substantive promotions. If these appointees criticized the judiciary or ruled against the Japanese government in some politically sensitive case, the court might punish them. More important, reform-minded judges in Japan do not play very important roles in the Japanese judiciary. Taiwan’s judicial independence reform began from the inside of the court system in the Tai-Chung District Court at the end of 1993. Two major avenues through which the KMT had controlled the judiciary were cases and personnel. Therefore, the reforms in question were to break down these two types of controls. In this paper, I will discuss two major reform movements: Case-assignment Reform Movement and Reforming the Personnel Review Council.