污名或正義？：原住民被告受辯護人協助權利內涵及制度設計之檢討

Stigma or Justice? A Study of Taiwan Indigenous Peoples’ Right to Effective Assistance of Counsel in Criminal Procedure

我國刑事訴訟法於2013年以提升原住民族司法人權為由，將原住民身分納入強制辯護事由。惟因原住民司法人權內涵不明，加上立法者未充分說明立法目的，致本修法招致污名化原住民族的批評。在此脈絡下，本文將以建構本次修法的正當性依據，以及檢討本次修法的具體規範設計為討論主題。首先，本文要釐清原住民族司法人權內涵為何，亦即透過司法院大法官解釋的整理，指出該人權內涵為原住民被告防禦權。更進一步，以原住民被告在刑事程序中因文化因素所致困境為基礎，主張該防禦權內涵是使原住民被告免於因文化差異而陷入難以防禦的困境。接著，本文將嘗試建構該修法的正當性依據。亦即，採取差異政治觀點說明本修法並非污名化，而是以正視原住民族因文化差異導致的困境為基礎，促使原住民被告可充分參與程序、有效防禦為目的，追求平等與正義的立法。最後，本文將檢討該修法妥當性，討論是否要採取強制辯護的制度設計。作為結論，本文認為此修法僅踏出保障原住民族程序主體地位的第一步，唯有設計原住民同為法主體的刑事程序，才是社會正義與實質平等的實現路徑。

In 2013, Article 31 of the Code of Criminal Procedure of Taiwan was amended to improve “the human rights of indigenous people in judicial procedure”, and the status of indigenous people became the reason for compulsory counsel. However, since the concept of “the human rights of indigenous people in judicial procedure” is still ambiguous and the legislative purpose was not clearly explained, the criticism that the indigenous people shouldn’t be unjustly stigmatized is also brought about. In this context, the main issue of this article is to justify this revision of the Code of Criminal Procedure and to examine the legislative model of this article. Firstly, this paper will clarify the substance of “the human rights of indigenous people in judicial procedure”. That is to say, through the analysis of J. Y. Interpretation, I will point out that the substance of this right is the indigenous defendants’ right to defend in criminal procedure. Moreover, I argue that, based on the predicament in criminal procedure that results from the cultural variation of indigenous defendants, the essence of this rights is to avoid the difficulties that the indigenous defendants fall into an undefendable situation due to cultural variation. Secondly, in this paper I will attempt to justify this revision of the Code of Criminal Procedure in 2013. Namely, in this paper, I will adopt the viewpoint of “the politics of difference”, and argue that the amendment in 2013 would not make indigenous people stigmatized. Besides, I will assert that the revision in 2013 is focusing on the difficulties brought about by the cultural variation between indigenous peoples and Han Chinese, and aims to realize the purpose of allowing indigenous defendants to fully assert their rights and defend themselves. Thus, it can be said that this revision is suitable for values such as justice and equality. Thirdly, this paper examines the validity of the amendment in 2013, and analyzes whether the legislative model of compulsory counsel should be adopted. Therefore, I conclude that this law amendment is only the first step in securing the status of the procedural subject of indigenous peoples. To satisfy social justice, establishing a criminal procedure that the indigenous people consider to be the subject is a fundamental method.