台灣觀審制與司法霸權－美國法學院生大驚奇

董欣如

On Jun 1, 2012, I had the opportunity to attend a Workshop on People's Participation in the Criminal Litigation hosted by the Judicial Yuan at National Taipei University. As a law student from the United States, a country where the jury plays a pivotal role in the legal system, I was curious to see how Taiwan would choose to implement public participation in its judicial system. I was especially interested in whether and how public participation would address the current challenges facing the Taiwanese judiciary such as low public confidence and lack of transparency. Would the incorporation of the public in trials help shift the power structure of the court, allowing for increased democratization and better checks and balances?
2012年6月1日，我有機會參加由司法院在國立台北大學舉辦的「人民參與審判座談會」。作為一名來自以陪審為核心司法制度的美國法學院學生，我好奇著台灣將如何把人民參審融入到既有的法制當中。尤其面對著現今普遍民眾都對司法失去信心、在司法不透明的氛圍底下，人民的參與是否可以扭轉法院的權力架構，允許更多的民主化，並達成更好的權力分立
制衡呢？
The featured speaker at the conference was a judge from Korea who had been invited to share his experience with the jury system in Korea. A number of judges, a prosecutor, and two defense attorneys were also invited as panelists. Law students made up the remainder of the participants. The lack of persons from outside the legal community was not particularly surprising considering the nature of the event, but it did make me wonder whether the general public had been invited on any other occasions or if their opinion had been solicited at all.
與會來賓中，有一位是來自韓國的法官，他先為我們分享了韓國現行的陪審團經驗；接下來便由1位法官、1位檢察官、2位辯護律師擔任與談人，其餘的就是法律系學生在台下當觀眾。基於議題的本質，雖然我並不意外整場活動沒有不具法律背景的人參與，但此類研討會的消息是否有邀請其他的社會大眾參加，或他們的意見是否有被徵詢過，都令我感到非常存疑。
As the workshop got underway, I was surprised to learn that both defense attorneys present were junior associates. In an embarrassing moment, the moderator failed to have a bio prepared for one of the attorneys who was awkwardly asked to introduce herself to the room. The defense attorneys, unlike the prosecutor and judges, were also never given an opportunity to speak or ask questions beyond when the moderator opened the floor to general questions at the end. As such, their inclusion in the workshop almost seemed like an afterthought.
會議開始後，我很驚訝擔任與談者的2名辯護律師都還如此資淺，而主持人沒有作足功課，漫不經心地要求台上律師自我介紹時，也使得現場十分難堪（編按：主持人介紹與會律師時，說「我也不認識，請他們自我介紹好了。」）完全不同於檢察官及法官們，這些擔任與談者的律師在會議中沒有機會發言或發問，直到最後開放全場討論時，他們才得以發言。就此而言，他們的結論比較像是事後感想。
The law students were afforded even less of an opportunity to participate. They merely sat and watched as the featured speakers gave their presentations before being dismissed at the end. As such, calling the event a "workshop" was a bit deceptive as, in reality, only one side was able to present its views.
法學院學生所受到的待遇更差，都只是坐在台下聆聽嘉賓的演講。他們都稱此為「座談會」有點名實不副，依我所看，這只是單方面說明他們的看法而已。
As for the content of the Judicial Yuan' s presentation, I was surprised by a number of the features of the Guan Shen system. In fact, the more I learned, the more it became apparent just how different the role of the public was in the Guan Shen system versus what I knew in the States. I also began to question the goals of the proposed system.
再來，談到司法院的報告內容，我對於觀審制的許多特點都非常驚訝。事實上，當我越深入了解這個「觀審制」時，我越覺得這個「觀審制」的一些特點與美國現行的制度完全不同。我也開始懷疑「觀審制」被提出來的真正目的到底是什麼？
A simple example of this difference could be seen in the seating arrangement. When juries are seated separately from the judge in a jury box, this separation provides a visual cue indicating the independence of the jury in reaching its decisions. Guan Shen members, however, sit alongside the judges. While the Judicial Yuan hopes that the seating confers status to the Guan Shen members as fellow decision makers, this arrangement also creates an impression that the Guan Shen members and judges are aligned as members of the same group. The seating therefore creates a visual impression that the Guan Shen members are merely voting with the judges as opposed to independently of them.
例如，就法庭上的座位分佈而言，在美國，陪審團都會被安排在與法官分開的特定陪審席上，這樣的安排在視覺上就是為了突顯陪審團是全然獨立的，在不受任何影響之下而作出裁決。反觀在「觀審制」中，觀審員都安排與法官同坐，此項安排賦予觀審員作為決策者一員的地位，有著與法官連成一線、同一團體的感覺。因此，座位的安排會產生一種視覺印象，使這些觀審員只不過是隨著法官一起投票，和他們的獨立性正好完全相反。
Along similar lines, Guan Shen members are allowed to consult with the judges not only on questions of law but also to receive explanations of the evidence. As judges represent authority figures with greater legal knowledge and experience, the Guan Shen members will likely defer to their professional expertise. Allowing judges to consult with Guan Shen members will therefore influence the Guan Shen members' decisions and pressure them to agree with the judges' findings.
與此相似的舉動，例如觀審員不只被允許可以向法官詢問法律問題，還可以聽法官對某特定證據的意見。當法官展現出更好的法律知識與經驗的權威形象時，觀審員便很容易作出合乎法官想法的決定。因此，允許法官為觀審員提供諮詢，就會影響觀審員，甚至會迫使他們去接受法官所認定的事實。
Advisory decisions are also reached by a simple majority among five Guan Shen members. The requirement for a unanimous verdict among a larger pool of jurors (six to twelve in the United States) ensures a very high burden of proof for the prosecution. To have to convince only three out of five people lowers this burden to the point where the level of protection for the defendant becomes trivial. The difficulty of convincing twelve people of the same thing also underscores the weight of the jury's guilty verdict thereby lending legitimacy to the decision. After all, not only does a criminal conviction carry significant consequences for the defendant in terms of abrogation of his right to liberty or even life, but a conviction also carries the stigma of society's condemnation of his actions. The requirement of unanimity properly communicates the onerous nature of the jury's decision, and I am not sure that a verdict reached by a simple majority among five people can carry the same gravitas.
雖然5名觀審員當中只要過半數通過就可達成對於判決的建議，但我卻認為由較多人數所組成的陪審團一致決（在美國由6至12名不等的陪審員組成），才能確保檢方負起高度的舉證責任。在「觀審制」的制度之下，只需要去說服5位觀審員的其中3位，這降低了檢方的舉證責任，而使得對於被告的保護，則顯得無足輕重。要在同一件事情上，同樣說服12個人，是如此地艱難，也強化了陪審團有罪判決的重量，並因此而讓判決更有正當性。畢竟法院的決定不單只是
影響被告的自由或生命，法院的判決更象徵著整個社會對被告所作行為的一種譴責。全體一致同意的要求，透過陪審團的一致決適當地傳達了出來，正是體現了陪審團存在的真正意義。只由5人所組成的觀審團過半決，是否能達到同樣的效果，我則無法肯定。
Furthermore, the Guan Shen members' decision ultimately carries no legal weight as the judge can choose to disregard their verdict. What is the purpose of having the Guan Shen members reach a decision at all if it can be set aside so easily? Under such a system, judicial decisions will still rest entirely in the hands of the judges. The Guan Shen system will therefore not serve to help democratize the judiciary nor would the system be able to serve as a check on the judges' power. Rather than decision makers, Guan Shen members are merely forced spectators drafted into watching thejudges do their job.
進一步來說，法官可隨意去選擇是否接受觀審團的意見，這一點使觀審團的意見在法律上顯得毫無重量。觀審團作出認定後，如果可以輕易地不予採納，要觀審員表示意見又有何意義？到頭來在整個制度下，司法權還是依舊牢牢的操縱在法官手裡。這樣的「觀審制」根本無助於司法民主化，也無法和法官的權力制衡！與其說是決定者的角色，觀審員更像是被強迫拖去看法官如何工作的旁觀者。
More troublingly, under the Korean system where judges are also able to override the verdicts of jurors, judges disagreed with the jury 54 times. In 50 of these instances, the judge overturned the juries' "not guilty" verdict. Being able to overturn an innocent verdict by
the jury undermines yet another potential protection
for the defendant.
更麻煩的是，韓國制度下的法官也可以推翻陪審
員的決定，而自實施以來，法官否決陪審員多達54
次，其中50次都是推翻陪審員的無罪判決。法官能否
定陪審團的無罪判決，其實也侵蝕了對被告的一種潛
在性保護機制。
Given the above observations, I could not help but wonder what it is the Judicial Yuan hopes to accomplish with the Guan Shen system. The system as presented fails to democratize the judiciary, check judges' power, or even provide additional protections for the defendant. Even if the Guan Shen system is merely attempting to increase transparency with the hope that forcing judges to render their decisions under the scrutiny of Guan Shen members will encourage better decision making, the limitations on cases may serve to defeat this point. Allowing the court to choose which cases will be tried in front of Guan Shen members could create a bias. As all so-called "complex" cases will be eliminated, it may create the impression that the judicial system is working just fine when, in fact, the cases where abuses are most likely to occur are actually being hidden from the purview of the public. Rather than increasing transparency, the Guan Shen system might instead create a false impression that the judicial system is functioning better than it actually is.
綜觀上述各點，我真的無法理解並感到詫異，到底司法院希望透過「觀審制」達成什麼樣的目標？這制度既無法達成司法民主化、監督法官的權力，甚至連要保護被告的目的也無法做到。儘管司法院希望透過民間觀審員的參與去提高司法透明度，並希望在觀審員的監督下，能作出更好的決定，但是對於個案所附加之種種條件限制，根本就會讓這期待落空。讓法院可以任意選擇哪些案件要採行觀審、哪些則不採行，也會產生許多「偏見」。例如法庭會以「情節過於複雜」的理由，排拒觀審員的參與。這會讓外界以為「法院」運作良好，但事實上許多濫權的、真正需要被注目的案例卻被排除在社會大眾的視線之外。「觀審制」非但沒有增加透明度，反而可能會產生一種錯誤的印象，就是我們的司法制度運作良好，但事實卻相去甚遠。
Ultimately, the previous power structure of the courts has not been changed at all by the Guan Shen system. Almost as foreshadowing, I found that the hierarchy of participation at the workshop to be almost an exact mirror of the current power structure of the Taiwanese judiciary – judges and prosecutors taking center stage, defense attorneys in a marginalized role, and everyday people being left out entirely. Can the Guan Shen system really help to increase the legitimacy of the judiciary without any substantive changes to the current power structure? While I remain skeptical, I suppose we will see next year as the Legislative Yuan is expected to finalize the Guan Shen provisional act
approved by the Judicial Yuan before the end of 2012.
最後要總結的是，原先就一直存在的法院權威其實根本就沒被觀審制撼動過。如此預兆一般，我發現我那時參加座談會的霸權機制，正如同鏡子一般反射在台灣的司法權力架構：檢察官跟法官在舞台中間擔任主角，辯護律師只是被邊緣化的人物，而人民就是連邊都沾不到的門外漢。對現存權力架構缺乏實質調整力道的「觀審制」，能否提高司法的正當性？目前，我對此保留懷疑的態度－－我想，立法院預計於2012年底前通過由司法院提出的《人民觀審試行條例草案》；屆時結果如何，明年一切見真章。