論國民法官之國家賠償責任

State Liability of the Citizen Judges

立法院於2020年通過國民法官法，開啟我國平民參與刑事審判的時代，由一般人民與職業法官共同審判，為我國法制帶來不同的挑戰。惟行政院在2021年提出國家賠償法修法草案，草案第5條（現行國賠法第13條）立法理由中將國民法官加入，代表國民法官有構成國賠之可能。但是否依現行規定國民法官即有可能構成國賠，本文從國民法官法所定之職權分析，並從憲法角度論證國民法官是否為憲法上法官。又分析現行國賠法中之各該要件，國民法官是否足以構成。
此外，如討論國民法官之國賠責任，勢必牽涉現行國賠法第13條合憲性及立法論爭議，特別是釋字第228號解釋是否有重新討論之必要性。進而回歸到國民法官國賠責任部分，本文試圖不同角度評釋草案之妥適性，提出初步看法。

In 2020, the Legislative Yuan passed the Citizen Judge Bill: on the one hand, the act leads Taiwan into a new era in which citizens participate in criminal trials with professional judges side by side; on the other hand, our legal system is confronted with the severe and diverse challenges which the act could bring about after promulgation. In the mean time, the Executive Yuan introduced the draft law of the revision of State Compensation Law in 2021. According to the legislative purpose of the article 5 of the concerning draft law (which can be referred to the article 13 of the current version), it is explained clearly that the Citizen Judges are possible to be the cause of state liabilities.
Nonetheless, the author argues that the Citizen Judges are already the cause of state liabilities under the current version of the State Compensation Law. To support the idea mentioned above, the article first tries to analyse the authorities of Citizen Judges entitled by the Citizen Judge Bill, following with the reasoning that«Citizen Judges»conform to the«judge»in our Constitution, and then examine whether Citizen Judges could be the subject of the current provisions of State Compensation Law.
Furthermore, while studying the state liabilities caused by Citizen Judges, it is inevitable to deal with the disputes on the constitutionality of the article 13 of the current State Compensation Law together with a reconsideration of J.Y. Interpretation No. 228. In conclusion, the article attempts to comment the draft law of State Compensation Law from the perspectives mentioned above, and to propose the author’s own opinion on it.