論觸法少年之移送制度

The Juvenile Waiver System

How should we treat juveniles who commit crimes? Should we focus on rehabilitation? Or should retribution be emphasized instead? While it is rather difficult to make a choice between these two treatments, retribution policy is often chosen—as a means to try to deter juveniles from committing crime—when the juvenile crime rate begins to rise. Such policy, however, is not in the best interests of the child. In practice, either a statutory waiver or a judicial waiver is used to move a juvenile case from juvenile court to criminal court for prosecution and punishment. But the statutory waiver is a tool of crime control; it does not serve juveniles well. Moreover, the requirements in a judicial waiver are not precise enough. There was thus no differentiation between the juvenile court and the criminal court. In this article, it is argued that most juvenile cases should be dealt with in juvenile court. The decision to send a juvenile to criminal court should be made carefully and only serves as a rare exception. If the waiver system is to be kept, it is necessary to eliminate the statutory waiver and retain the judicial waiver only. The requirements in a judicial waiver should be established more precisely. And the court should always have a hearing when trying to decide whether to transfer a juvenile to criminal court.