公平審判、法定法官原則與法官迴避事由──法官曾參與先前裁判之迴避問題

Right to a Fair Trial, Principle of the Legal Judge, Recusal of Judges: the Issue of Judges Recusing Themself from Hearing Cases They Had Previously Dealt with

法官曾參與先前職務之自行迴避問題，雖經釋字第178號及第256號解釋，但爭議未曾平息。本文從公平審判及法定法官原則之違憲審查觀點出發，借鏡歐洲人權法院及德國法，分析以下各種情形之法官迴避問題：一、曾參與下級審裁判之上級審法官；二、曾參與再審或非常上訴前確定裁判之下級（事實）審法官；三、曾參與再審或非常上訴前確定裁判之上級（法律）審法官；四、曾參與更審前裁判之下級審法官；五、曾參與更審前裁判之上級審法官（此即「連身條款」之問題所在）。本文結論認為情形一至三屬於違憲層次，其餘則屬立法政策問題。

Though the J.Y. Interpretation No. 178 and No. 256 had focused on the issue of judges recusing themself from hearing cases they had previously dealt with, there are still problems. This article will discuss the following circumstances relating to the question of a judge’s recusal in the sight of the right to a fair trial and the principle of the legal judge, taking a page out of the book of ECHR judgments and German law: 1. Where the judge of the superior instance had participated in the decision at a trial at the lower instance. 2. Where the judge of a trial of fact had participated in the decision at a trial before retrial or extraordinary appeal. 3. Where the judge of a trial of law had participated in the decision at a trial before retrial or extraordinary appeal. 4. Where the judge of the lower instance had participated in the decision at a trial before being remanded. 5. Where the judge of the superior instance had participated in the decision at a trial before being remanded. (That is the issue of the “joint-body clause”). This article concludes that circumstances 1 to 3 are unconstitutional, while the rest are a matter of legislative policy.