被害人訴訟參與結合修復式司法的應用──安全理念的建構

Victims' Particiption in Litigation and the Application of Restorative Justice - The Construction of Security Idea

年初（即民國109年）公布施行刑事訴訟法（下稱本法）條文，締造出二種機制，其一即該法第7編之3被害人訴訟參與相關條款，從而開啟被害人訴訟參與的契機，瞭解訴訟的經過情形及維護其人性尊嚴；其二也規範諸多與修復司法有關條文，成為「修復式正義」或稱「修復式司法」（Restorative Justice）的成文依據，用以修復破裂社會關係，達成社會安全應有歸趨。前述二者對照傳統刑事司法（Criminal Justice）係屬司法程序外之新措施，由其蘊含意義堪稱是劃時代的創舉，一者讓被害人藉諸訴訟參與，促成被害人亦得以參與人主體地位呈現，扭轉歷來審判中訴訟只有法院、檢察官及被告三面機制關係；二者讓被害人與加害人雙方之間開啟修復式互動，即以積極方式構築彼此的司法關係，共同營造修復式司法正義，讓社會安全最終為之復原。試觀傳統刑事司法規範旨趣，涵蓋於被告訴訟權益的有關條款，向來有增而無減，而於被害人的層面同樣作用也是時有所聞；雖說如此，但對構築被害人司法程序上的主體地位，或對於加害人與被害人雙方的修復式作為，凡此情況相形之下則鮮有為之，因而理所當然暴露出傳統刑事司法的不足；否則，何須有年初的立法。而今，藉由被害人訴訟參與以及修復式司法的應用方面雙管齊下，機制上有所發揮機能，可想而知的，則是更優於傳統刑事司法。

At the beginning of the year (that is, the Republic of China 109), the provisions of the Criminal Procedure Law were promulgated and two mechanisms were created, one of which is the relevant provisions of the 7th part of the law, Victims 'Particiption in Litigation, so as to open the opportunity for the victims to participate in the lawsuit and understand the process Maintain its human dignity; second, it also regulates many provisions related to restorative justice, and becomes the written basis for ''restorative justice'' or ''restorative justice'' to restore broken social relations and achieve social security. Trend. Compared with the traditional criminal justice (Criminal Justice), it is a new measure outside the judicial process. Its implication can be regarded as an epoch-making initiative. To reverse the litigation in the traditional trial, only the court, prosecutor and defendant have a three-way mechanism relationship; the two allow the victim and the perpetrator to start a repairing interaction, that is, constructing the judicial relationship of each other in a positive way, jointly building a repaired judicial justice, and let the society Safety is finally restored. Try to look at the traditional criminal justice norms, covering the relevant provisions of the defendant 's litigation rights, which has always increased without reduction, and the role at the victim level is also well-known; Or, for the rehabilitative actions of both the perpetrator and the victim, in contrast to this situation, there is little to do, so it is natural to expose the deficiencies of traditional criminal justice; otherwise, there is no need for legislation at the beginning of the year. Nowadays, with the two-pronged approach of victim litigation and the application of restorative justice, the mechanism is functioning. It is conceivable that it is better than traditional criminal justice.