2022年刑事程序法發展回顧：國民法官法與刑事訴訟法的銜接與背離──以模擬審判為觀察點

Developments in the Law in 2022: Criminal Procedure Law

自2020年國民法官法通過，我國各級法院已進行多次模擬案件的審判，試圖從中發現問題、解決問題。目前負責國民法官法案件專庭的職業法官，大多參與了模擬審判。因此，模擬審判所得的經驗、發掘的問題，對於正式運作必有重要的影響。回顧模擬審判中累積的大量經驗，對於國民參與審判的順利運作，有極大的價值。
本文因此選擇了最能呈現國民法官法與刑事訴訟法機制異同的3項議題，依據法律規定、立法理由與模擬審判相關紀錄，並加入行為科學的觀點，說明國民法官法應有的適用方式：
第一，證據能力裁定應如何進行？國民法官法採「卷證不併送」，並要求法院原則上必須在準備程序即裁定證據能力，與既有的刑事審判程序截然不同，使法院備感挑戰；
第二，上訴審應採取何種審查機制？國民法官法對於上訴審的規範僅有4個條文。上訴審法院對於第一審有國民法官參與做成的判決，應以何種基本立場進行審查？
第三，國民法官法規定，第二審法院要撤銷國民法官法庭所認定的事實，以違背經驗或論理法則為前提。惟此二法則在國民法官法的適用與刑事訴訟法不盡相同。法院適用此二法則時，應有如何的調整？

Since the passage of the Citizen Judges Act in 2020, various levels of courts have conducted multiple simulated trials in an attempt to identify and address issues. Currently, most of the professional judges responsible for cases under the Citizen Judges Act have participated in these simulated trials. Therefore, the experiences gained and issues uncovered during these simulated trials are expected to have a significant impact on formal operations. Reviewing the substantial experience accumulated during simulated trials is of great value for the smooth operation of citizen participation in criminal trials.
This article, therefore, selects three issues that best illustrate the similarities and differences between the Citizen Judges Act and the Code of Criminal Procedure. Based on legal provisions, legislative intent, records related to simulated trials, and insights from behavioral science, this article explains the appropriate application of the Citizen Judges Act in the following ways:
First, how should evidence rulings be conducted? The Citizen Judges Act adopts a ''separate examination of evidence'' procedure and requires that the court must, in principle, determine the evidence admissibility during the preparatory process. This differs significantly from existing criminal trial procedures and presents a challenge to the court.
Second, what kind of review mechanism should be adopted for appeals? The Citizen Judges Act has only four articles regulating the appeals process. How should the appellate court review trial court decisions, which are made with the participation of citizen judges?
Third, the Citizen Judges Act stipulates that for the second-instance court to overturn the facts determined by the trial court, it must be based on a violation of experience or logical rules. However, the application of these two rules under the Citizen Judges Act is not entirely consistent with their application under the Code of Criminal Procedure. How should the court adjust when applying these two rules?