事實誤認救濟機制之再造–從獨立覆審機關談起

Abstract

再審作為事實誤認之救濟機制，理應擔當刑事確定案件平反之最後手段。然而，觀察利益受判決人之再審，相較於比較法上德國與日本之發展，我國於2015年重新修訂新規性與確實性之結果不如預期，且欠缺受判決人權利之保障與法院管轄與迴避上之弊病，導致再審法制仍成效不彰。不過，縱使改善上開缺失，若囿於法院之成見，亦未必真能活化再審。基此，總統蔡英文於2015年所主張之司法改革政策與2017年所召開之司法改革國是會議，提出擴大冤獄救濟管道，使遭誤判之無辜之人得重啟再審，應予設立獨立覆審機關，以檢視刑事確定案件，聲請或促使再審之開啟。對此，本文將關注此機制於我國應如何設立以及如何與再審契合而再造。 對於獨立覆審機關之類型，司改國是會議指出可參考英國與挪威等制度，本文選擇系出同源，卻各自走向司法組織內強化獨立之加拿大，與司法組織外創建獨立之英國，來探討其優劣。初始，此種定讞後之救濟，係源於君主之皇家赦免權，用以調節刑罰與平反冤獄。但在邁入現代國家後，加英二國各自交由司法部長與內政部長決定是否將受有罪判決之人提交至法院救濟。此種模式因1980年代冤獄四起，認為舊制欠缺獨立性，有礙冤案之救濟，導致運作之成效不彰，而有改革之必要。現制上，可從組織定位、調查手段、標準效力與實際運作來分析。加拿大雖仍維持司法部長決定之模式，擁有較強制之取證手段與較高之審查標準與決定效力，最終卻因規模較小而乏善可陳；相對於此，英國則由多元組成之獨立委員會予以決定，僅能直接向公部門取證，私人則須法院同意，選擇較低之審查標準與決定效力，最後則因規模龐大而成效斐然。 回歸我國之脈絡，可與作為獨立覆審機關起源之皇家赦免權相比者，當屬赦免，惟我國之赦免有組織與程序上之欠缺，考量加英二國已將此權力換軌至定讞後救濟制度，因此，本文認為仍應回歸既有救濟制度之改善為主。目前我國對於獨立覆審機關之態度，司法院乃採取否定見解，認為強化既有之再審即已足夠；法務部則予以贊同並成立審查會。然而，本文以為司法院之作法，未必能促使其活化；而法務部之審查會若與加拿大之制度相比，亦有獨立、效力與規範上之不足，不符獨立覆審機關應有之要求。若權衡實際可行性，在不進行大幅變動下，強化調查權後之監察院，結合過往協助平冤之經驗，作為我國之獨立覆審機關，應屬當仁不讓。最後，本文擬將見解具體化，提出在監察院下設置獨立覆審機關之立法建議作為結論。

Retrial, a factual error remedy, should act as the last relief of criminal final judgments. However, observing the retrial made for the benefit of sentenced people, compared with the comparative law on the development of Germany and Japan, the 2015 Taiwanese amendment on novelty and certainty was not as expected; besides, the lack of protection of the rights of the petitioner of the retrial and the issues of jurisdiction of courts and disqualification of judges made the retrial inefficient. Even if the deficiencies mentioned above are improved, the retrial regime cannot be truly activated if the judgments are prejudiced by the courts. Therefore, judicial reform policy advocated by President Tsai Ing-wen in 2015 and the National Affairs Conference of Judicial Reform convened in 2017 propose to increase the remedies of wrongful convictions, which is to ensure that innocent people have the chance to restart the retrial and to establish an independent review authority to re-examine criminal final judgments, apply retrial and to promote retrial. In this regard, this thesis will focus on how this independent review authority should be established in Taiwan and how it will reconcile with the retrial. For the type of independent review authority, the National Affairs Conference of Judicial Reform pointed out that we can adopt the system of the United Kingdom and Norway as references. This thesis focuses on the judicial practices of Canada and the United Kingdom, which have the same origin but evolve differently later on, to analyze their advantages and disadvantages. Initially, the post-conviction remedies stemmed from the Royal Prerogative of Mercy, aimed at relieving the punishment and saving the wrongful convictions. However, as the two countries evolve into modern countries, both Canada and the United Kingdom decided to let the Minister of Justice and the Secretary of State decide whether to bring the guilty case to the court to re-examine or not. Yet, it was considered that the system lacked independence and obstructed the remedies for wrongful convictions because of a series of wrongful convictions in 1980s, which was ineffective in operation and called for reform. The current system can be analyzed from the characterization of the organization, the way of investigation, the standard effect and the practice. Though Canada still maintains the mode which is decided by the Minister of Justice, having more powerful means to investigate and collect evidence and higher review standards and decision-making effectiveness, the mode is inefficient due to the small scale.. The United Kingdom, on the other hand, has a multi-constituent independent commission that can directly obtain evidence from the public departments, or obtain evidence from private parties with the prior permission of the court, with lower review standards and decision-making effectiveness, yet, they have achieved remarkable results due to their large scale. Under the circumstances of Taiwan, pardon regime may be compared with the Royal Prerogative of Mercy as the origin of the independent review authority. However, there is a lack of organization and procedures in our pardon regime. Considering that Canada and the United Kingdom had shifted the power to the post-conviction remedies, this thesis proposes that we should still focus on the improvement of the existing remedies. At present, the Judicial Yuan is negative towards the independent review authority and believes that strengthening the existing retrial is enough; on the contrary, the Department of Justice approves the proposal and establishes a review meeting. This thesis considers that the practice of the Judicial Yuan may not be able to achieve activation, and that the Department of Justice still cannot meet the requirements that the independent review authority should have independence and effectiveness in comparison with the Canadian system. To balance the ideal and the reality, this thesis proposes that the Control Yuan should be regarded as an independent review authority of Taiwan as long as it could gain more investigation right than before and utilize the past experience of relieving wrongful conviction. Finally, this thesis concludes with legislative recommendations of establishing an independent review under the structure of Control Yuan.