論國民法官勘驗

On the Citizen Judges’View

刑事訴訟法之勘驗係由事實認定者實施。為保障被告及辯護人之在場權及異議權，最高法院乃要求應「事先通知到場」以符合正當程序，並避免法官實施密室勘驗。然而，國民法官法卻允許國民法官在審判中僅以檢察官、受命法官或是合議庭之勘驗筆錄，以為事實認定依據。此種區別是否妥適，即為本文所欲釐清之課題。本文以美國法制為基礎，針對勘驗之證據地位、制度功能，以及正當程序等議題進行分析。在與我國法制進行比較後，主張應強調被告在勘驗程序應獲得之憲法上正當程序保障；縱已作成勘驗筆錄，亦應由國民法官法庭於審判期日，再行勘驗以釐清勘驗筆錄內容記載是否有誤。國民法官法過度限縮國民法官於審判中認定事實之權限，已牴觸當事人進行主義與實質審理原則，實有修正之必要。

According to the Code of Criminal Procedure, a view should be conducted by the fact-finders. To safeguard the rights of presence and objection for the accused and their defense counsel, the Supreme Court has held that“prior notice to be present”is required to satisfy due process and to prevent judges from conducting ex parte or secretive views. Nonetheless, the Civil Judges Act allows civil judges, during trial, to base their fact-finding solely on view records prepared by prosecutors, assigned judges, or judicial panels. The appropriateness of this distinction constitutes the central question examined in this article.
Using the American legal system as a comparative foundation, this article analyzes the evidentiary status, institutional function, and due process of judicial views. Through comparative analysis with Taiwan’s legal system, this article argues that during the view procedure, due process guarantees under the Constitution must be extended to the accused. Even where view records have already been produced, the citizen judge panel must conduct its view during the trial to verify the accuracy of the record.
The Citizen Judges Act, by overly restricting the authority of citizen judges to engage in fact-finding during trial, contravenes the principles of the adversary system and direct hearing. Accordingly, revision of the Act is necessary.