以法律文化衝突論考察二二八事件

Abstract

本論文是以法律文化的觀點詮釋二二八事件。二二八事件的法律背景，即是在二戰結束後，國民黨政權接收台灣，移入其在中國的訓政體制統治文化，而與當時台灣社會從日治時期以來累積的法治經驗發生衝突。一方面，日治台灣經歷了前期的武力反抗與軍事鎮壓，及至民政時期殖民當局以法律手段制裁異議人士，而台灣也產生了一批新式法政知識精英，在體制內運用法律爭取抗爭的空間，並對社會形成影響。此後雖在日治末期面臨更高強度的法律打壓，始終未再遭到軍事力量的威脅。 另一方面，中國政權建立的訓政體制，是以國民黨一黨專政的黨治，作為實施憲政的準備階段。惟因中國連年戰亂，非但未能實現憲治的目標，反將黨政大權集中於軍事將領之手，形成「以軍事鎮壓為主、以政治手段為輔、以法律解決為末」的統治文化。戰後初期台灣官民之間不同法律文化的相遇，即造成許多法治亂象，擴大官民衝突，至發生員林事件，人民對新政府法治信賴崩壞的結果，遂使二二八事件成為全島動亂的衝突。 二二八事件發生期間，本省領導社群本於其日治經驗，向國民黨官方提出政治改革訴求，卻被視為叛亂，動用軍事行動加以鎮壓。此後官方究責行動仍以軍事手段為主、政治懷柔手段為輔，僅在大規模軍事鎮壓告一段落後，始有少數的普通司法判決，顯示出其法治意識之欠缺。故二二八事件後，台灣社會於日治時期所形成的現代性法律文化與本省知識精英幾乎從政治舞台上消失，取而代之的是黨治體制輕法重軍的統治文化。

The present research aims to provide an interpretation of the 228 Incident with a legal cultural perspective. The legal background of the 228 Incident was one governing culture of the political tutelage system transplanted from China since the Kuomintang (KMT) takeover of Taiwan after the end of World War II, which contradicted the rule of law experience accumulated in Taiwanese society since the Japanese occupation. On the one hand, Taiwan under the Japanese governance, went through armed resistance and military suppression in the earlier stage, to the Civil period where the colonial administration imposed sanction against dissents with legal means. However, a new breed of legal-political elites emerged and fought for room of opposition inside the system by law and impacted the society. Thereafter, even though they were faced with more intense legal crackdowns in the latter phase of the Japanese rule, threats of military force had never been a concern any longer. On the other hand, the political tutelage system established by the Chinese regime was centered on one-party governance by Kuomintang as the preparation stage for implementing the constitutional system. Whereas, due to chaos caused by incessant wars, China not only failed to actualize the goals of constitutional governance, but the authority of the party-government was centralized in the military leaders, forming a ruling culture “relying mainly on military suppression, assisted with political means, and according the least importance to legal resolution.” In the early stage after WWII, the encounter of distinct legal cultures among Taiwanese government and its people created much chaos out of the rule of law that expanded conflicts between the government and civilians. Until the occurrence of the Yuanlin Incident, where the people had lost trust in the new government’s rule of law, resulting in the 228 Incident that led to a conflict causing island-wide conflicts. During the 228 Incident, a local leading community based on their experience in the Japanese administration, submitted a request for political reform to the KMT party, but was met with military crackdown under the cause of insurrection. After that, the government still resorted mainly to military action for assigning blames, and less to political conciliatory means, and only after a massive armed suppression was executed would there be a few common judicial judgments, manifesting the lack of consciousness of the rule of law. Hence, after the 228 Incident, the modern legal culture taking shape during the Japanese governance and the local educated elites in the Taiwan society literally disappeared from the political arena, substituted by a ruling culture dominated by a party-governance system that weighed military power over the law.