我國人民參與刑事審判之研究

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Title:	我國人民參與刑事審判之研究 A Study on the Lay Judge System in Criminal Trial in Taiwan
Authors:	蘇東閔
Contributors:	法律學系
Keywords:	陪審團參審員裁判員 (備位)國民法官證據開示迴避陪審員制度終局評議判決上訴避免突襲性裁判 Jury Lay Judeg Saiban-in (Alternate) Citizen Judges Discovery Voir Dire Final Deliberation Sentence Appeal Prevention from Surprise Judgement
Date:	2022
Issue Date:	2023-02-21 10:42:38 (UTC+8)
Abstract:	為使我國民重拾對司法之信賴，即將於 2023 年 1 月 1 日施行國民法官法，進行人民參與刑事審判之制度，而人民參與刑事審判制度，主要以德國與美國為典型之代表，另我國國民法官制度之原型為日本裁判員制度，故簡要說明此三國立法例，主要重點在各國歷史背景、參與審判之人民如何產生、評議、判決及上訴。另由於我國國民法官法引進卷證不併送制度，而此制度很重要的配套就是證據開示制度，故美國、日本另說明其證據開示制度。美國陪審員之選擇，晚近並不排斥具有法律專業者，且證據開示制度並不採全面開示制度，另因陪審團制度重要精神在於保障人權避免政府迫害，故陪審團所為之無罪評決無可挑戰；德國參審制的上訴審在特定犯罪亦採人民參與審判，且隨審判期日長短，調整判決理由制作之時間；日本裁判員制度屬於混和制度，人民可全數反對職業法官之判斷以保障人權，此處近於美國制，法官與裁判員共同認定事實、適用法律，又近於德國制。我國採日本裁判員制為模型，最大的不同是，不採日本的「證據開示三階段」。我國國民法官法的適用範圍過小，且主要參考立法例為有罪率極高之日本制度，是否就是適合我國的理想制度，有待後續觀察，本文並提出幾項修法建議。 In order to enhance the public's confidence in the judiciary, the Citizen Judges Act will become effective on January 1, 2023. It is one of the most important judicial reform policies of Taiwan. The people's participation in the criminal trial system is mainly represented by the system in Germany and USA. As well as, the prototype of the Citizen Judges Act is the Japanese Saiban-in Participate in Criminal Trials Act. Therefore, the three foreign legislations are briefly compared, mainly focusing on the historical background of these three countries, the Voir Dire and appointment of Lay Judges, Final Deliberation, Sentence, and how to Appeal. Besides, the Citizen Judges Act adopts the system of the Indictment without the Dossier and Evidence, which is supported by the Criminal Discovery System. As a result, the Discovery in Criminal Systems in Japan and in the U.S.A are compared in this thesis. The selection of jurors in the United States does not exclude legal professionals recently, and the Discovery system does not reveal all the evidence. In addition, because the important spirit of the jury system is to protect human rights and avoid government persecution, the jury's verdict of not guilty cannot be challenged; The appeal trial of the German Lay Judge System also uses the citizen’s participation in the trial for specific crimes, and the time for making the reasons for the judgment is adjusted to the length of the trial period; the Japanese Saiban-in System is a mixed system. In certain circumstances, the Saiban-in can exercise their veto against the sentence of professional judges to protect human rights, which is similar to the Jury system. On the other hand, the procedure of Saiban-in and professional judges jointly determining the facts and jointly applying the law is similar to the German Lay Judeg System. The prototype of the Citizen Judges Act is the Japanese Saiban-in Participate in Criminal Trials Act, the biggest difference between the Citizen Judges Act and the Japanese Saiban-in Participate in Criminal Trials Act is that the Citizen Judges Act does not adopt the Three Stages of the Japanese Discovery. From the perspective of this thesis, the scope of application of the Citizen Judges Act is too narrow. Furthermore. because the Citizen Judges Act refers to the Japanese Judicial System, which with a very high conviction rate, it remains to be seen whether the Citizen Judge Act the ideal system for criminal cases in Taiwan. There are some suggestions on this thesis.
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