離婚贍養費之研究

Study of Alimony

我國通說實務認為，贍養費有離婚後扶養之性質，且前配偶之贍養義務應優先於親屬間之扶養義務。本文則認為，應將贍養費分為更生性贍養費與永久性贍養費。前者為一時性的經濟援助，用以協助他方取得經濟獨立，安定其離婚後之生活，此時，適合採前配偶贍養說。後者因爲終身扶養，通常扶養期間較長、扶養費總額較高，且他方年老、生病乃自然之現象，不得歸咎於前配偶，因此，要求前配偶獨自背負他方之餘生，而無故免除子女之扶養義務，難謂合理，故應採扶養義務共同分擔說。再者，為使贍養費制度發揮其保障離婚後生活之功能，應刪除現行法中「請求人無過失」及「限於判決離婚始得請求」之要件。至於是否應另外承認補償型離婚給付，乃我國法今後之課題。

While victims/survivors of sexual violence are increasingly encouraged to break the silence in society, the criminal justice system should advance its practice in this area. Restorative justice, which focuses on the healing of victims/survivors and the rehabilitation of offenders, has promising potential for addressing sexual violence cases. Although the philosophy of restorative justice was introduced in Taiwan over a decade ago and was embedded into the Code of Criminal Procedure and the Juvenile Justice Act for the first time in 2019, Taiwan still lacks practical experiences and academic discussion on dealing with sexual violence cases through the restorative justice process. Therefore, this research contributes to this field of study by reviewing sexual violence-related restorative justice programs, two in Australia and one in New Zealand. Looking at the experiences in both countries, results indicate that restorative justice can meet both parties’ needs in sexual violence cases if there is sufficient preparation and careful assessment. Six suggestions are as follows: (1) The restorative justice process in sexual violence cases should be more flexible and victim-oriented due to the complex nature of sexual violence cases; (2) Facilitators who are responsible for sexual violence cases should receive special training in sexual violence issues such as power dynamics and trauma-informed knowledge; (3) Tailored restorative justice guidelines and risk assessment principles for sexual violence cases are recommended, with the consideration of local culture, in order to evaluate that restorative justice is an appropriate option for participants, ensure that participants are well prepared, and prevent participants from second victimization; (4) It is necessary to run offender behavior change programs and victim support programs with restorative justice conferencing in sexual violence cases, which plays a crucial role for the offenders and victims’ reintegration into their communities; (5) It is worth considering the establishment of an “Apology Letter Bank”, which does not only provide offenders a mechanism to express their remorse and apology to victims, but it also give victims more room to manage their healing process and their response to offenders; (6) Based on one core value of restorative justice, people have the right to address their conflicts with those involved. Accordingly, it is worth considering adding “the positive outcome of restorative justice conference” as a sentencing criterion in Article 57 of the Criminal Code in Taiwan, with the purpose of valuing victims/survivors’ voices and encouraging offenders’ effort on restoration.