The common law pre-trial disclosure/discovery procedures, such as interrogatories, depositions and document production, are generally not available under the Taiwan Code of Criminal Procedures and the Code of Civil Procedures. Certain provisions of the Code of Criminal Procedures and the Code of Civil Procedures establish a process known as "evidences." However, no document requests can be issued by a party to the opposing party, no interrogatories are allowed, and no depositions of the opposing party's witnesses are permitted.

Criminal procedure

Criminal procedure comprises the investigation procedure and the trial procedure. During the investigation procedure, the prosecutor has no obligation to disclose the evidence they have to the defendant, since, under the Code of Criminal Procedures, the investigation procedure is not public. The defendant also has no obligation to disclose the evidence they have. However, the prosecutor may file a motion with the court for a search warrant to search and seize the evidence in the defendant's possession, if there is probable cause to believe that the evidence will be destroyed or concealed.

If it is apprehended that the evidence may be destroyed, forged, altered, concealed, or hard to use, then the complainant, suspect, accused or defense attorney may, during the investigation stage, apply to the prosecutor to conduct a search, seizure, expert examination, inspection, examination of a witness, or other necessary conservatory measures. If the prosecutor refuses to approve the application, the applicant may apply directly to the court for preservation of the evidence.

During the trial procedure, the court may schedule a preparatory proceeding before it substantially reviews the case on the trial date. During the preparatory proceeding, the court may ask the parties to file a motion for investigation of evidence. The court can also consider the scope, order and methods of investigation of evidence in the preparatory proceeding and can order the parties to present exhibits or evidential documents.

If the court does not schedule a preparatory proceeding, it can issue a subpoena and obtain or order the production of an exhibit before the trial date. A party, including the defendant or the prosecutor, may also present evidence and ask the court to order the production of exhibits or evidential documents before the trial date.

In addition, all of the records and exhibits which are in the possession of the prosecutor's office during the investigation process are required to be submitted to the court when a prosecution is initiated. Therefore, the defendant will be able to review the prosecutor's files in court after indictment.

Civil procedure

The civil procedure regarding the disclosure of documents is detailed in the articles relating to evidence in the Code of Civil Procedures. Common law pre-trial discovery procedures, e.g., requests for answers to interrogatories, requests for depositions, or document production, are generally unavailable in Taiwan. Each party merely presents, on an ad hoc basis, the evidence that it needs in order to support its factual allegations.

Pursuant to the Code of Civil Procedures, a party bears the burden of proof with regard to the facts which it alleges in its favor, except where the law provides otherwise or where the circumstances render it manifestly unfair.

However, if it is likely that evidence may be destroyed or difficult to use in court, or with the consent of the opposing party, the party may ask for a court ruling for the preservation of such evidence. Where necessary, the party that has a legal interest in ascertaining the status of a matter or object may move for expert testimony, inspection or preservation of documentary evidence.

A preparatory proceeding may also play a similar role to discovery. Where the court considers necessary, a preparatory proceeding can be convened, and the court may order the parties to provide explanations on matters indicated in the preparatory pleadings. The court may also order the parties: (i) to make statements with regard to the facts, documents, or articles; and (ii) to formulate and simplify the issues and other necessary matters.

Documentary evidence must be produced and submitted to the courts. Parties have a duty to produce documents that have been referred to in the preliminary pleadings or in the course of oral debate proceedings. If a party proposes to use a document that is in the possession of the other party as evidence, a court order requiring the other party to produce the document will be required. If the courts consider that the fact to be proved is material, they may order the other party to produce the document. As such, parties have an obligation to produce the following documents:

• Documents to which they have made reference in the course of the litigation
• Documents of which the opposing party may require delivery or an inspection pursuant to applicable laws
• Documents that are created in the interests of the opposing party
• Commercial accounting books
• Documents that are created with respect to matters relating to the action

If a party does not comply with an order for the production of a document in their possession without justifiable grounds, the court may, in its discretion, deem proven the opposing party's allegation with regard to such document or fact to be established by such document.

Notwithstanding the above, if there is no preparatory proceeding, the court may order the parties to produce documents or articles, to notify witnesses or expert witnesses to produce documents or articles, to conduct inspections or order expert testimony, or to request an agency or organization to conduct an investigation, amongst other things.