論依循先例（stare decisis）如何及為何構成法源──寫在大法庭制度立法之後

How and Why is Stare Decisis a Source of Law: In the Wake of the Establishment of the Grand Tribunals

依循先例成為司法習慣，是由法官判案前的三個選擇統合構成：一、檢選先例，引為裁判理由；二、發現不同之處，有所區辨；三、充分書明理由，推翻先例（但絕不輕率、經常為之）；因為每位法官在審判時自覺體會身為司法一體的成員，每則裁判都關係司法整體的公信力。基於司法系統獨立的意識，審慎依循先例並不妨礙法官依其法律見解自主做成判決的審判獨立性，法官只是自我提醒，在做成判決前先看看過去的裁判怎麼說，在三個選擇中採取其一，再認真交代自己的判決理由，久之即成司法習慣。法官養成依循先例的習慣，可以充分達成司法裁判必須書明理由的基本要求，從而促進法的安定性、滿足司法公平性、增加司法可預測性、抬升司法透明度、提高整體司法公信力、顯示司法理性、體現司法謙抑，也成就司法品格。依循先例與大法庭的建制具有高度互補作用。真正的挑戰，則在於能否藉此填補現代司法在我國從無到有的歷史文化真空。

Stare decisis as a source of law consists of three options that every judge ponders and selects before delivering a judgment: a. look for applicable precedents that may be cited as support in the judicial reasoning; b. identify the inapplicable ones when consequential differences are found; and c. fully state the grounds, when it is decided, though never lightly or frequently, that a precedent is to be overruled. It’s developed from the self-consciousness of judges as members of the integrated judicial institution, as individual judgments are to judicial integrity. Judicial prudence in stare decisis, in the spirit of an independent judiciary, does not undermine the autonomy that judicial independence has created for the needs of each judge in rendering a judgment. All a judge has to do is bear in mind the need to study precedents before forming his or her own judicial decision, and after carefully choosing one of the three options, articulate adequate reasons so that a work habit can be established. Adoption of stare decisis as a judicial habit helps fully satisfy the necessary requirement that each judgment be fortified with legal grounds and reasoning, so as to enhance judicial consistency, fairness, predictability, transparency, accountability, rationality, prudence, and integrity. Stare decisis can greatly complement what the new institution of the Grand Tribunals is intended to achieve. The real challenge, however, lies in whether it helps to fill the historical vacuum of a judicial culture that a contemporary judiciary must be equipped with but is missing in ours.