由「法官不語」是否為拉丁法諺的法官守則論法官的言論自由權及界限

Is “The Judge Must Keep Silence” What the Latin Legal Proverb Really Means? : A Discussion on the Boundaries of a Judge's Freedom of Speech

「法官不語」是一個廣為我國法界所承認的拉丁法諺，意指法官不必為承審的案子做任何的解釋，此法諺也被延伸到成為法官的「禁口令」：法官不得評論任何或即將繫屬法院的案件。已成為法官的行為準則且具有法規性質。本論文澄清此法諺是否真正源於拉丁法諺？經評論所有相關的拉丁法諺後認為並無此法諺存在。並藉此討論法官的言論自由界限，將針對德國法官法的相關規定、法院的判決以及最重要的指標人物，例如：主張法官應當積極發表言論以形成法律與政策的維特尤斯（Ulrich Vultejus）法官的理論以及與之相異的主流見解，亦即應遵循與公務員一樣的中立與節制的標準，以維繫司法的尊嚴所謂的消極論，來進行深入的探討，最後會與我國的相關法制與公懲會的相關案例進行比較，並提出作者的評論。 “The judge must keep silence” has been widely regarded as a Latin legal proverb in Taiwan for decades. As this proverb is construed, a judge needs not make an interpretation of a case on which he or she has ruled. This legal axiom, by extension, has become a judicial “gag rule” that a judge may not express any opinion on cases connected with his or her court. As such, it has already become a criterion for a normative nature in Taiwan for judicial behavior. Rulings handed down by judges in Taiwan for certain cases have elicited vigorous public criticism and debate, while generating intense media attention. Taiwan's freedom of speech and prevalent practice of statements to the media as the basis of social discourse puts judges in Taiwan observing this legal axiom at a disadvantage in answering questions about their rulings, and calls into question whether such silence is really appropriate for upholding judicial dignity. This article clarifies whether or not this legal axiom really has its roots in a Latin proverb, and after discussion of all relevant Latin proverbs, avers that this legal axiom does not exist. This conclusion then comprises the basis for a discussion of the boundaries of a judge's freedom of speech. Relevant stipulations in Germany's Richtergesetz, a court's verdicts and the most important indicative figures, as exemplified by the “Judicial Activism” initiated by German Judge Ulrich Vultejus in the 1970s and opposing mainstream opinions, as well as the code of judicial conduct in Germany that judges, like civil servants, should observe impartiality to uphold the so-called passive theory of maintaining judicial dignity are all examined in depth. These are then compared with the pertinent laws and regulations in Taiwan and its Public Functionary Disciplinary Sanction Commission, after which an authorial critique is provided.