從公平審判原則探討我國國參審制終局評議秘密原則

Discussing the Secrecy of Final Deliberation of the Lay Judge System in Taiwan from the Principle of Fair Trial

施行陪審制多年的美國，偶有國民將歧視帶入審判之情形，此意味著當社會對於特定族群存有歧視，在國民法官制度運作下，國民有可能將歧視帶入法庭。反觀我國，當我們將一些社會議題的討論作為觀察對象，亦得窺見歧視的存在，依循美國的經驗，歧視將可能在國民法官制度施行後進入審判，因此國民法官制度是否足以應對，進而維護公平審判，對於即將實行國民法官制的我國，乃需要被探討之議題。本文認為：縱使我國制度上有「職業法官決定是否適合進行國民參與審判」、「選任程序」、「貫穿審判程序的解任規定」、「職業法官監督」、「國民法官間相互監督」等應對機制，帶有歧視的國民法官仍有進入到終局評議程序的可能，進而產生「評議秘密原則是否可能隱藏歧視存在，導致公平審判受侵害？」之提問，具體來說，此牽涉到秘密原則之相關利益與公平審判間利益權衡之難題。本文最終提出「予當事人現場聆聽變聲處理後之評議，並賦予當事人異議權」、「終局評議筆錄」等措施，並認為若不採納，仍可參考美國法「陪審團指示」（jury instruction），促進國民法官相互監督之機能，期能在前揭利益間取得平衡。

In the United States, where the jury system has been implemented for many years, occasionally citizens bring discrimination to trial, which means that when society discriminates against certain ethnic groups, under the operation of the citizen judge system, citizens may bring discrimination to court. On the other hand, in Taiwan, when we take the discussion of some social issues as the object of observation, we can also notice the existence of discrimination. According to the experience of the United States, discrimination may enter the trial after the implementation of the citizen judge system, so whether the citizen judge system is sufficient to deal with and maintain fair Judgment, for our country, which is about to implement a citizen judge system, is an issue that needs to be discussed. This article argues that even though there are coping mechanisms such as “professional judges decide whether it is suitable for citizens to participate in trials”, “selection procedures” (which is similar to “voir dire” in the United States), “dismissal regulations that run through the trial procedures”, “Professional Judge Supervision”, and “Mutual supervision among citizen judges” in our citizen judge system, citizen judges with discrimination may still enter the final deliberation process. This leads to the question “Is the principle of secrecy in deliberation possible to conceal the existence of discrimination and infringe on a fair trial?” Specifically, this involves the problem of balancing the interests of secrecy of deliberation and fair trial. This article finally proposes measures such as “allowing the parties to listen to the voice-changed deliberation on the spot and granting the parties the right to object”, “final deliberation transcripts” and believes that if they are not adopted, they can still refer to the “jury instruction” of American law to promote mutual supervision by citizen judge. It is expected to achieve a balance between the interests of the previous disclosure.