修復式司法中之倫理與實務議題初探

A study of Ethical Issue of Restorative Justice Program in Taiwan

我國的修復式司法是於訴訟程序之外，由法務部訂定規範再轉介志工促進者執行操作之調解平台，聚焦於修復在訴訟中的衝突雙方或多方，因該事件引發的情感傷害，進而在尋求真相、道歉、撫慰、負責與復原中伸張正義。而按促進者之工作具有志願助人者之特質，是促進者既得在偵查不公開的情況中，以志工之身分獲悉部分或更多之訴訟資訊，因此在受理修復事件時，遵循倫理規範以不逾越中立角色是必須也是必要。不過經多年的實務積累亦得見並與聞有偶遭質疑或模稜兩可致操作過程猶豫不定之事。舉其要者：訴訟當事人初聞修復式司法無不墜入五里霧中，若將緣由至內容闡明需時不短，此種解說對後續程序之因果相關性？又「說服」當事人參與修復，係滿足促進者抑係幫助當事人？種種看似無關緊要而實質卻對修復式司法之建構與推展連結甚密。此際司法院正按2017年之司法改革國事會議之決議，積極研修將修復式司法入法落實之始，如何藉由實務累積之倫理議題，作為爾後周延立法之反饋參考，對修復式司法未來得以走向積極導正社會氛圍極具研究價值。 Restorative justice in Taiwan is regulated by the Ministry of Justice and beyond the legal proceedings, that the parties are referred to a mediation platformwhere they may have a dialogue facilitated by practitioners. The focus of dialogue is on resolving the conflict between two or more parties in the litigation, on repairing wound and then seeking truth, apology, comfort, responsibility and recovering justice. Among the facilitators' selection criteria, there are empathy, warmth, and enthusiasmfor life. These also are the qualities of helper. As the practitioners of restorative justice with helper role, they are involved the case of criminal ligation and bound by the 'Investigation Shall Not be Public Principle'. When practitioners learned more of the litigation information as a volunteer, it is necessary to follow the ethical norms not to overstep the neutral role. However, after many years of service, I have seen and heard distrust or ambiguities so as to practice in hesitation. When list some important incidents, it could easy understand the ethical issues: the parties have no sense at all when they first heard the restorative justice and the practitioners need to clarify and explain the whole concept of restorative justice. Would the explanation meet the requirement of parties? Would it constitute the cause and effect relationship? Either in a case of persuading parties to participate the restorative justice program, did the persuading be satisfied the need of practitioner to help the parties? or in aparent-child conflict incident, how the practitioners maintain the standard between family moral principles and practice ethics? And would it possible for a restorative justice programcase mutatis mutandis the rule that entire proceeding on the trial date shall be recorded in audio, and if necessary, in video which based on Code of Criminal Procedure? And what is the ethical nature of this rule? When a practitioner published case stories fromrestorative justice program, with the exception of privacy protection, is there any other ethical considerations? What are the legal effects of the above points? Professional ethics can standardize the professions and maintain quality of the service. Thus established the trust formthe public. This is the restorative justice programcore value. According to the report of Judicial Reform Conference in 2017, the Judicial Yuan did actively research and study to implement the restorative justice into the law. This is an opportunity to accumulate ethical issues in restorative justice practice as a feedback references to subsequent legislation, and it is of great research value for the future restorative justice programto operate move towards a positive direction and reformsocial atmosphere.