刑事案件評議之正當程序與公正審判

Due Process and Fair Trial in Criminal Deliberation

刑事訴訟程序之內涵，應符合憲法第8條第1項：「人民身體之自由應予保障。除現行犯之逮捕由法律另定外，非經司法或警察機關依法定程序，不得逮捕拘禁。非由法院依法定程序，不得審問處罰。非依法定程序之逮捕、拘禁、審問、處罰，得拒絕之。」所定正當程序之要求。然而，從解嚴後迄今，即便釋字第476號解釋：「人民身體之自由與生存權應予保障，固為憲法第八條、第十五條所明定；惟國家刑罰權之實現，對於特定事項而以特別刑法規定特別之罪刑所為之規範，倘與憲法第二十三條所要求之目的正當性、手段必要性、限制妥當性符合，即無乖於比例原則，要不得僅以其關乎人民生命、身體之自由，遂執兩不相侔之普通刑法規定事項，而謂其係有違於前開憲法之意旨。」業已肯認死刑規定之合憲性；不過，論者卻少有針對判決作成之評議程序予以檢討，關於評議之正當程序，在國民法官法施行後，將更引人關注。在公正審判原則具憲法位階之前提下，本文認為，不論是定罪或科刑，均應符合正當程序之要求。在憲法法庭已對死刑案件評議作出一致決限制之基礎上，本文認為在以國民法官法庭對非死刑重罪案件進行審判時，應排除存在合理可疑與牴觸國民參與審判精神之評決類型，始符合公正審判之要求。

The content of the criminal procedure shall comply with due process of Article 8, Paragraph 1 of the Constitution, providing that:“Personal freedom shall be guaranteed to the people. Except in case of flagrante delicto as provided by law, no person shall be arrested or detained otherwise than by a judicial or a police organ in accordance with the procedure prescribed by law. No person shall be tried or punished otherwise than by a law court in accordance with the procedure prescribed by law. Any arrest, detention, trial, or punishment which is not in accordance with the procedure prescribed by law may be resisted.”Even though No. 476 of the Grand Justice Council, holding that:“The right to liberty and security of person and the right to life should be guaranteed, as expressed by Articles 8 and 15 of the Constitution. However, fulfilling the state’s penal powers requires special/exceptional criminal laws, which are enacted to punish certain offenses in specific fields. They should not be considered a violation of the principle of proportionality as long as they meet the requirements of Article 23 of the Constitution, i.e., the legitimacy of the objectives, the necessity of the measures, and the proportionality of the restrictions (or proportionality stricto sensu). Such exceptional criminal laws, which cannot be equated to ordinary criminal laws, should not be deemed unconstitutional merely on the basis of the right to liberty and security of person and the right to life.”already confirmed the constitutionality of death penalty, few have reviewed the panel’s deliberation process since the lifting of martial law, and the due process of deliberation would attract more attentions after the implementation of the Citizen judges’Act. Under the constitutional principles of fair trial, this paper claims that both conviction and sentence procedures should not be against the principle of due process. Based upon the TCC Judgment 113-Hsien-Pan-8 (2024) which requires death penalty to be decided by the unanimity of verdict, the fair trial principle requires that, in serious non-capital cases, any verdict with a reasonable doubt or unsupported by the majority of citizen judges should be held invalid.