從公民參與刑事審判之社會價值論參與態樣——比較法之觀點

A Comparative Study of the Social Value of Citizen Participation in Criminal Trials

當代刑事司法受法系傳統與社會價值影響至深，精神物質文明進步，與封建高權壓迫不同，因此我國在刑事訴訟改革進程中研議公民參與刑事審判，應以公民權實質平等之參與精神為法理，思考參與態樣之有效性而為抉擇。陪審由公民獨立認定事實，判斷有罪無罪，裁定不受司法審查，無須說理，如何救濟，必為我國法律傳統之重大挑戰。蓋程序參與、事實認定、量刑判斷，密不可分，若由公民與法官同組合議庭，形成溝通式司法，就制度可行性而言，有助審判活動效益，妥速審理，值得參考，我國公民參與刑事審判之態樣應強調公民參與擔保正當法律程序，公平審判之社會價值，定位公民參與刑事審判之目的功能，使審判妥速，復增信度與效度，有不可或缺之司法利益。

The modern criminal justice system has been formed by social culture and the tradition of variant legal models. With the development of civilization, the meaning of different methods of incorporating the lay voice into criminal justice systems differs from its suppression in traditional feudal society. Criminal procedural reform also implicates an association between lay involvement in a particular legal system and democracy. Equal participation involving civil rights provided the context of legal theory in constructing a system of citizen participation in criminal trials. An analysis of lay involvement should thus consider the influence of institutional, social and culture factors within a given legal system, as well as the availability and effectiveness of juries and mixed courts in legal practice. Within the legal tradition, juries are deemed as qualified fact finders in making decisions of guilt and innocence. It is clear that the authority of the jury verdict is respected worldwide as well as manifesting the issue that a number of such verdicts have been bereft of reasoning. The context of legal remedies in traditional continental systems adopted here would also generate more challenges across civil law traditions. Nevertheless, the mixed court practice has enhanced lay authority in certain significant respects that enables citizens to participate in the criminal justice system. This would also be helpful in adopting a feasible legal system to expedite trials. Especially, right and obligation need to be balanced in competing equities, fact-finding, participation in procedures and deciding an appropriate sentence as these are particularly valuable for citizens who participate in criminal trials for forming a communicative legal system. To overcome the fear of oppression imposed by governments, concerted efforts must be aimed at the practice of civil rights by introducing citizen participation in criminal trials in Taiwan. Relevant to the point, the features of such a system would serve to ensure that social values represented by citizen participation would safeguard the rights of due process and a fair trial. The system design would specify the function and goal of supporting citizen participation in criminal trial and would also enhance the validity and efficiency of trials by enhancing the legal system with social values. In particular, certain judicial interest can be drawn upon to provide fair evidentiary and procedural communication by judges and citizens.