公民參與刑事審判之上訴審量刑審查問題──日本最高法院二○一四年七月二十四日第一小法庭判決研析

Sentence, Appeal and Judicial Review Issues Associated with Citizen Participation in Crim-inal Trial (Saiban-In Seido)—An Analysis of Japan’s Supreme Court, First Petty Bench, Decision on July 24, 2014

上訴制度旨在審查救濟，至關體系正義與公平審判。稟於整體證據構造理解爭點是否藉兩造攻防在審判中釐清，真實發見與科刑效果是否允妥，當是公民參與刑事審判調合實體法與程序法應合之表現。嚴格的評議量刑規範，記明爭點評議意見，得規範心證恣意之危險，有助上訴法院審查刑之選擇、刑期，乃至科處財產刑之範圍，科刑對應具體個案內容，故立法允之裁量餘地，責任衡酌須以客觀證據之質、量、內容使行為責任評價明確，各界討論量刑當否，須論及上訴審查評議量刑程序及其結構，處理量刑當否，應落實評議量刑規範，使違法情節與刑罰實質對稱。

The appeals system is aimed to provide judicial remedy, and is vi-tal to the judiciary for the upholding of justice and conduct of fair trials. Intrinsic to the overall evidence structure is understanding whether the fact/legal issues of dispute made by the prosecuting and defending law-yers in the trial are clarified to find truth. Fact-finding and punishment are best served by citizen participation in criminal trials, reflecting the practice at the trial stage of combining substantive law and procedural law. Strict evaluations of sentencing factors, recordings of court pro-ceedings, and regulations on what constitutes evidence will aid the ap-peals court in reviewing the choice of punishment and sentencing, and even the scope of fines. Punishments should correspond to the content of each specific case and its evidence, allowing discretion at appellate levels, and should be subject to the quality, quantity, and content of such evidence so that a clear assessment of responsibility can be made. The judicial review of penalty should be considered through the rule of deliberation/sentence at appellate levels, and the analysis of deliberation documents concerning the member size of courts that vote on issues proposed by prosecuting and defending lawyers, subject to the High Court and Supreme Court. Justifiable review sentencing and issue dis-cussion-votes required by deliberation/sentencing norms should be im-plemented so that the punishments will suit the offences proved during the fact-trial phase.