臺灣司法官社群文化中的中國因素——從清末民國時代中國追溯起

The Chinese Element in the Culture of Judicial Officials in Taiwan: Tracing the Legacy from the Qing and Republican Era of China

中國自清末至民國在司法官任用制度上都要求經專業考試，但實踐上仍有不少未經考試及格者，且該項考試只重西式法律知識。制度上亦標榜司法獨立，但現實上司法官素質不佳，乃以傳統官僚體系思維採考核制度，司法官因而難以獨立於「上級」之外。國民政府則採司法黨化，以黨中心控制政治性案件裁判、以黨義影響一般民刑事裁判。司法官的待遇差使得傳統的制度性貪瀆難斷根，故社會對司法官觀感更差，越少人才願投入。上述民國中國的制度及文化主導了戰後臺灣的司法，導致臺灣民眾未能對司法官產生信賴感，故宜有所改變，讓法官成為夠格為獨立審判的專才。

Professional ability was required in appointing a judicial official in the Qing and Republican era of China. However, many judicial officials in practice did not pass the professional examination; moreover, this examination only paid attention to Western-style legal knowledge. Ju-dicial independence was provided in law, but a judicial official could not avoid the interference from his or her superior due to the assessment system in the traditional bureaucracy, which wanted to inspect the ca-pability of inferior officials. The Nationalist Government further adopt-ed a party-oriented judiciary. The central authority of the KMT (the Na-tionalist Party) gave instructions to the decisions of political lawsuits. The KMT also inculcated judicial officials with the ideology of the KMT in order to influence judgments in civil and criminal lawsuits. The low salary of judicial officials to a certain degree resulted in corruption, which had existed in imperial China for a long time. Therefore, the im-age of the judiciary was bad in Republican China; not surprisingly, the legal profession was hardly a priority in the career plans of students at the university. The institutions and culture of the judiciary in Republi-can China continued to dominate the judiciary in postwar Taiwan. As a consequence, the general public in Taiwan was mistrustful of judicial officials. The best way to reform Taiwan’s judiciary is to appoint those who have been experienced prosecutors or lawyers to be judges and then to allow them to independently adjudicate lawsuits because judges are known to have been capable of make wise decisions.