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題名 | 法官聲請釋憲之崎嶇歷程=The Arduous Experience of a Judge Petitioning for Constitutional Interpretations |
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作者姓名(中文) | 陳志祥; | 書刊名 | 思與言 |
卷期 | 38:1 2000.03[民89.03] |
頁次 | 頁79-122 |
分類號 | 589.6 |
關鍵詞 | 犯罪化; 大法官; 死刑; 無期徒刑; 有期徒刑; 罪刑相當原則; Criminalization; Council of grand justices; Death penalty; Life imprisonment; Term imprisonment; Principle of proportional punishment; |
語文 | 中文(Chinese) |
中文摘要 | 吸食毒品並未侵害他人,不應立法加以犯罪化;舊法規定吸毒免 刑一次後再犯又再犯者,要判處死判或無期徒刑,更不合理;筆者乃裁 定停止審理中之案件,聲請大法官解解。 八十四年立法之「弁嚴時期人民受損權利回復條例」,要讓白色恐 怖之受害人獲得賠償;惟其賠償範圍甚為狹窄。筆者遂代當事人聲請 解釋,大法官於八十八年初作成四七七號解釋,同意放寬賠償範圍。 筆者認為販賣毒品並未殺人,處以有期徒刑已足;立法規定死刑 或無期徒刑,是為過量之處罰。為破除「治亂世用重典」之迷思,使法 官能夠注意「罪刑相當原則」,筆者遂聲請大法官解釋,大法官卻認為 不違憲。 市場慣有之收購委員託書,乃商業行為,依法卻要判處一年以下 有期徒刑,實乃錯誤之立法。筆者依被告之請求而聲請大法官解釋。 筆者審理一件殺人案,因被告自首犯罪,依法必須減輕其刑。筆 者覺得量處無期徒刑太重,有期徒刑十五年又太輕,乃聲請大法官解 釋,請求宣告廢除有期徒刑十五年之上限。大法官卻以程序理由駁回 聲請。 財團法人民間司法改革基金會舉行八十七年度法官評鑑並公布評 鑑結果,一位被公布不及格之法官認為其名譽受侵害,遂以該基金會 之董事長及執行長二人為被告,提起誹謗罪之自訴。筆者認為唯有捏 造事實才有誹謗罪可言,乃聲請大法官解釋。 筆者認為法治國家之法官或大法官,不但要專業學識豐富,更應 具有不忍人之心,其在裁量之間,才能流露仁義,而在以法服人之外, 更能以德服人。 |
英文摘要 | The taking or ingestion of illegal drugs that does not harm others should not be criminalized through legislation. The old law, stipulating that first time offenders would receive suspended sentences, while third-time offenders must be sentenced to death or life imprisonment was unreasonable, so I decided to cease hearing a case and then petitioned the Council of Grand Justices for an interpretation. The legislation in 1995, the Regulations Restoring Civil Rights Compromised During the Period of Martial Law were passed, allowing the victimes of Taiwan's "white terror" to receive compensation. However the scope of compensation was narrow, so I petitioned for an interpretation on behalf of the people involved. At the start of 1997, the Council came out with Interpretation No. 477, agreeing to broaden the scope of compensation. I believed that a specified term of imprisonment was sufficient punishment for selling drugs that did not result in the death of anyone. The sentences of death or life imprisonment stipulated by the law were excessive. In order to debunk the myth that "severe examples must be made to bring order to a chaotic world," and have the Council of Grand Justices pay attention to the "principle of proportional punishment," I petitioned the Council for a constitutional interpretation. However, the Council did not feel that the law was unconstitutional. The market practice of purchasing authorization for committee members is a business act, yet, according to the law, cannot result in a sentence of more than one year's imprisonment. This is 'a really mistaken law. At the request of a defendant, I petitioned the Grand Council of Justices for a constitutional interpretation. I was hearing a homicide case where the sentence had to be reduced because the defendant confessed to the crime. I felt that a sentence of life imprisonment was too harsh, but a prison term of 15 years was too light, so I petitioned the Council of Grand Justices for a constitutional' ruling, asking that they announce a revocation of the 15-year limit to the term of imprisonment. The Council rejected the petition on procedural grounds. The Civil Judiciary Reform Foundation conducted a review of judges in 1998 and announced the results of the review. One judge who was named by the Foundation as being unqualified felt that his reputation had been damaged and filed a slander suit naming the chairman and chief executive of the Foundation as defendants. I felt that only a twisting of the facts could constitute the crime of slander and so petitioned the Council of Grand Justices for a constitutional interpretation. I feel that judges and Grand Justices in a country that observes the rule of law must be professionally knowledge, but should even more be merciful. They should demonstrate humanity and justice in their rulings so that their rulings are accepted for demonstrating a keen sense of the law, and more importantly, for morality. |
本系統之摘要資訊系依該期刊論文摘要之資訊為主。