The common law pretrial disclosure/discovery procedures, such as interrogatories, depositions and document production, are generally not available under the Taiwan Code of Criminal Procedure and the Code of Civil Procedure. Certain provisions of the Code of Criminal Procedure and the Code of Civil Procedure 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

Ordinary process

The 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 Procedure, 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, 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.

Evidence disclosure under the Citizen Judges Act

Although the Code of Criminal Procedure does not provide for a general system of evidence disclosure, articles 47 to 58 of the Citizen Judges Act (enacted in 2020, with most provisions taking effect from 1 January 2024) introduce specific provisions governing evidence disclosure in criminal cases involving citizen judges. The evidence disclosure system under Taiwan's Citizen Judges Act is primarily implemented during the preparatory proceedings of the trial stage. Unlike the investigation stage, which is not public and does not require the prosecutor or the defendant to disclose evidence, the trial stage emphasizes procedural fairness and transparency through mutual disclosure obligations.

After indictment, the court will conduct a preparatory proceeding before the first trial date. During this stage, the court may instruct the parties to clarify the issues in dispute and file motions for the investigation of evidence. The prosecutor is required to submit a preparatory brief listing the evidence to be presented, its relevance to the facts to be proven, and the names and expected examination time of witnesses or experts. A copy of this brief must be served to the defense.

The prosecutor must also disclose the case files and physical evidence to the defense, unless such disclosure would (1) be unrelated to the charged facts, (2) jeopardize another investigation, (3) infringe on privacy or trade secrets, or (4) endanger someone's life or safety. The defense may request access to these materials, and the prosecutor must comply within five days or agree on an extension.

In response, the defense must submit its own preparatory brief, stating whether the defendant admits or denies the charges, its views on the admissibility and necessity of the prosecution's evidence, and any evidence it intends to present. The defense must also disclose the identity and expected testimony of its witnesses.

If either party fails to disclose evidence as required, the opposing party may petition the court to order disclosure. The court may then issue a ruling specifying the scope and method of disclosure. If the party still refuses, the court may reject their motion to investigate the undisclosed evidence.

Civil procedure

The civil procedure regarding the disclosure of documents is detailed in the articles relating to evidence in the Code of Civil Procedure. Common law pretrial 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 to support its factual allegations.

Pursuant to the Code of Civil Procedure, a party bears the burden of proof with regard to the facts that 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, among other things.