國民參與審判量刑之上訴審查

Appellate Review of Sentencing Decisions by the Criminal Trials with the participation of Citizen Judge

關於國民參與審判之量刑審查標準，國民法官法施行細則第307條立法理由指出係採取「裁量濫用原則」，此似未能契合國民法官法立法宗旨。借鏡美國法經驗，本文建議，上訴審應先審查國民參與審判之量刑有無程序上重大違誤。之後再為實質審查：倘原審量刑係在司法院量刑資訊系統建議或未來預計制訂之量刑準則範圍內，即應推定該量刑並無不當或濫用；若非在該範圍內，亦不應推定該量刑為不當或濫用，上訴審仍應依「裁量濫用原則」為審查。

The purpose of the statute of Enforcement Rules of The Citizen Judges Act Article 307 points out that the standard of review of sentencing decisions by the Criminal Trials with the participation of Citizen Judges is Abuse of Discretion. However, it might disobey the purpose of the statute of The Citizen Judges Act. Learning from American law, we suggest that the appellate court should first ensure that the sentencing decisions by the Criminal Trials with the participation of Citizen Judges committed no significant procedural error. After that, the appellate court should consider the substantive reasonableness of the sentence. When conducting this review, the court should take into account the extent of departure from the Judicial Yuan Sentencing Information System or the future Sentencing Guidelines range. If the sentence is within the range, the appellate court may apply a presumption of reasonableness. On the other hand, if the sentence is outside the range, the appellate court still has to review the sentence under an abuse-of-discretion standard.