再訪臺灣的調解制度：對傳統的現代化轉譯

Mediation Practice in Taiwan Revisited: Modern Translation of Traditions

本文認為日本殖民統治當局，雖在法律形式上維持現代國家由法院獨享司法審判權，但實質上以廳長民事爭訟調停制度，保留了清治時期廳縣官可不依律例為裁斷的紛爭解決方式。當時的臺灣人民則併用地方行政官的調解與法院內訴訟程序，解決其民事紛爭，顯現出延續傳統，亦接納現代的態度。戰後法制上雖已無地方行政官調解，但威權國家仍繼續提供且強化民事調解制度，民主化後更以新的理由予以正當化。於今固然可對於地方頭人調處及廳縣官聽訟等「古蹟」活化為現代調解制度，但關於民事紛爭解決機制的立法政策上還有另一個選項：增加司法投資，提供更有效能的法院訴訟，而非僅僅強化調解。 Under Japanese colonial rule, the courts in Taiwan were vested exclusive power ofadjudication, as modern states do. However, in actual practice, mediation of civil disputesat magistrates’ courts still adopted the Qing tradition that officials of prefectures andcounties could make judgments not necessarily following legal regulations. In colonialTaiwan, civil disputes were resolved through meditation by local administration officialsand/or litigation at courts, indicating that while traditional practices were preserved,modern approaches were also accepted and adopted. After World War II, meditation bylocal administration officials was no longer part of Taiwan’s legal system; yet,authoritarian rule continued to provide and strengthen the practice of resolving civildisputes through meditation. The meditation has been justified be the right to selectdispute resolution mechanism in democratic Taiwan. Therefore, the government shouldnot emphasize the efficiency of mediation in settling civil disputes only, but devote morejudicial resources to provide more effective court litigation for the selection of people.

Under Japanese colonial rule, the courts in Taiwan were vested exclusive power ofadjudication, as modern states do. However, in actual practice, mediation of civil disputesat magistrates’ courts still adopted the Qing tradition that officials of prefectures andcounties could make judgments not necessarily following legal regulations. In colonialTaiwan, civil disputes were resolved through meditation by local administration officialsand/or litigation at courts, indicating that while traditional practices were preserved,modern approaches were also accepted and adopted. After World War II, meditation bylocal administration officials was no longer part of Taiwan’s legal system; yet,authoritarian rule continued to provide and strengthen the practice of resolving civildisputes through meditation. The meditation has been justified be the right to selectdispute resolution mechanism in democratic Taiwan. Therefore, the government shouldnot emphasize the efficiency of mediation in settling civil disputes only, but devote morejudicial resources to provide more effective court litigation for the selection of people.