性別、司法與威權體制：台灣威權時期外省女法官的女性主義法律史考察 (1945-1992)

Abstract

作為台灣首批女法官，戰後隨中華民國來台的外省女法官如何與威權政府互動？因自身省籍優勢／性別弱勢雙重身分具有何種特殊處境？又是否嘗試改變男女不平等的法律？本論文援用性別與裁判（gender and judging）及威權體制司法的研究成果，以戰後台灣威權時期（1945-1992）外省女法官為研究對象，嘗試解答上述問題，並指出性別與裁判、威權體制司法兩類研究固然分別闡明女法官職場遭遇困境與裁判實踐，以及司法權／法院對威權體制鞏固及轉型發揮何種效果，但兩類研究鮮少聚合，以威權時期台灣作為個案，將能填補威權國家女法官的研究空白同時，分析威權體制、司法科層制與性別三者的互動關係。

本論文將戰後台灣威權體制分作建立（1945-1954）、鞏固（1955-1971）與轉型（1972-1992）三個時期，說明外省女法官數量變化、升遷情形同時，亦探討她們與威權政府互動關係及性別對其造成何種影響，進而指出將威權時期大法官等重要職位出現女人視作女性權利重要進展主張，不僅忽略外省女性身分如何造就升遷優勢，使其成為受威權政府提拔樣板女性，透過裁判、憲法解釋鞏固威權體制情形，也無助於檢視台灣司法體系內性別不平等、法官審判獨立遭受干預等問題，如何在威權時期形成，成為當今仍須處理的課題。

首先，本論文考察戰後台灣外省女法官的出現如何伴隨威權體制的建立。透過爬梳民國中國開放女性擔任法官的過程，本論文發現雖然1926年國民政府便已允許女性參與司法官考試，但直到1940年代才由於普設法院政策，令至少50名女性取得資格，其中接近半數在1945年後因司法接收及國共內戰隨中華民國政府來台，佔全體法官數量一成。威權政府也為確保司法人員政治忠誠，於1950年代前期打造結合黨化司法及司法科層制的威權司法機制，運用政黨組織及司法首長行政監督權介入法官審判獨立，由此作為威權體制一環。女法官審判實踐部分，本論文以她們經手普通法院審理零星內亂案件及1951年朱振雲案為例，發現存在就內亂案件從輕處斷，與並未因自身省籍／性別身分，做出考量孤身來台外省女性弱勢處境判決的趨勢。

接者，本論文探討外省女法官獲得升遷，擔任最高法官推事、地方法院院長及司法院大法官的過程，以及她們的判決、憲法解釋及國民黨黨務工作如何發揮鞏固威權體制效果。本論文發現司法體系重要職位存在司法科層制與政治任命兩類升遷機制：前者以年資累積為主要升遷考量，當局也不排斥任命符合資格女性，與此相比，1967年首位女大法官張金蘭的任命過程顯示她熱衷參與政黨工作經驗，使其獲得推薦並通過審查，而威權政府也往往僅願意任命1至2位樣板女性擔任是職。與此同時，范馨香、劉惠霖等女法官就黨外人士提出選舉訴訟的判決，及張金蘭就釋字129的發言及行動，都顯示外省女法官不僅駁回選舉訴訟、維繫國民黨介入下的不公平選舉結果，亦積極促成擴張懲治叛亂條例處罰範圍憲法解釋，而1963年女法官商維書因唐傳宗案判決遭受懲戒，則顯示當時仍有外省女法官消極抵抗威權司法，即便必須因此付出代價。

最後，本論文考察威權體制轉型下外省女法官回應，並以數量逐漸增加的本省女法官作為比較對象，分析省籍優勢是否逐漸縮減、外省女法官如何因應政治轉型及婦女運動等議題。透過比較省籍人口比例及司訓所女學員省籍比例，和本省女法官升遷情形，本論文發現與本省女性相比，外省女性仍就接受大學教育後參與司法官考試，以及政治任命司法職位享有優勢，催台青政策也始終排除司法體系內本省女性。而婦女運動及民主運動對威權體制的衝擊，也使得外省女法官挑戰男女不平等的法律及威權司法，范馨香以大法官身分參與官方民法修正，嘗試提出立基實質平等觀、兼顧家庭主婦／職業婦女保障的夫妻財產制修法，與1980年代後期謝啟大等資淺外省女法官推動司法改革動員即為顯例。

基於以上研究發現，本論文認為身為威權政府普通法院的一員，外省女法官必須面臨威權司法機制下政治干涉，亦就戰後台灣威權體制的發展發揮一定效果，而女性身分也始終影響外省女法官的職場處境，即便法官中立理念往往阻礙她們透過裁判改變不平等法律。而透過回顧威權時期台灣既不男女平等，亦欠缺審判獨立的司法實踐，將有助我們釐清當代台灣司法院權限過大、女大法官仍未超過半數等現象的歷史根源，進而思考如何設計兼顧男女平等、司法獨立及民主監督等價值的司法制度。

As Taiwan's first female judges, how did the Mainlander female judges interact with the authoritarian government? Given their dual identity of ethnic advantage and gender disadvantage, what unique situations did they encounter? Did they attempt to change laws regarding gender inequality? In order to address these research questions, this thesis utilizes the perspective of gender and judging and authoritarian judiciary to explore the history of Mainlander female judges in authoritarian Taiwan. This thesis declares that gender and judging and authoritarian judiciary respectively elucidate the challenges faced by female judges in the workplace and their judgments, as well as the impact of judicial power in the consolidation and transformation of authoritarian regimes. However, these two types of studies rarely converge. By using Taiwan during the authoritarian period as a case study, it is possible to fill the research gap regarding female judges in authoritarian states and analyze the interactive relationship among authoritarian regimes, judicial hierarchies, and gender.

This thesis divides the post-war authoritarian regime in Taiwan into three periods: formation (1945-1954), consolidation (1955-1971), and transition (1972-1992). It illustrates the changes in the number of Mainlander female judges, their promotions, and explores their interaction with the authoritarian government, as well as the gender impact on them. Furthermore, it refutes the argument that considering the appearance of women in important positions such as justices during the authoritarian period as a significant advancement in women's rights. This overlooks how the Mainlander identity may have contributed to their advantage in promotion, making them tokens of women promoted by the authoritarian government. It also ignores how Mainlander female judges solidify the authoritarian regime through judgments and constitutional interpretations. Meanwhile, the argument cannot address issues such as gender inequality within the Taiwanese judicial system and interference with judicial independence, which emerged during the authoritarian period and remain unresolved challenges today.

First, this thesis examines how the emergence of Mainlander female judges in post-war Taiwan accompanied the formation of the authoritarian regime. By tracing the process through which Republican China opened up the judiciary to women, this thesis finds that although the Nationalist Government permitted women to participate in the judicial examination as early as 1926, it was not until the 1940s, due to the policy of expanding courts, that at least 50 women obtained qualifications. Nearly half of these women came to Taiwan with the ROC government after 1945 due to the judicial takeover and the China Civil War, constituting about 10% of the total number of judges. To ensure political loyalty among judges, the authoritarian government in the early 1950s established an authoritarian judiciary that combined the politicization of the judiciary with a hierarchical judicial system. They utilized party organization and the administrative supervision power of judicial leaders to interfere with judicial independence. Regarding the judicial practices of female judges, this thesis examines their handling of insurrection cases and the 1951 case of Zhu Zhen-Yun. The study reveals a tendency to impose lighter sentences in insurrection cases and a lack of significant consideration for the disadvantaged status of Mainlander women who arrived in Taiwan alone based on the judges' provincial or gender identities.

This thesis then explores the process through which Mainlander female judges were promoted to significant judicial positions, such as judges of the Supreme Court, chief Justice of district courts, and Grand Justices. It also examines how their judgments, constitutional interpretations, and participation in KMT affairs contributed to consolidating the authoritarian regime. The thesis finds that there are two promotion mechanisms for important positions within the judicial system: hierarchical promotion and political appointments. The former considers seniority as the main criterion for promotion, and the authorities do not exclude qualified women from appointments. In contrast, the appointment process of Zhang Chin-Lan, the first female justice of the Judicial Yuan in 1967, demonstrates that her active participation in party affairs resulted in her recommendation and approval. However, the authoritarian government was often only willing to appoint only one or two token women. Meanwhile, Mainlander female judges such as Fan Shun-Shiang and Liu Hui-Lin, through their rulings on election lawsuits involving non-party candidates, and Zhang Chin-Lan's statements and actions in Judicial Yuan Interpretation No. 129, demonstrated that Mainlander female judges not only dismissed election lawsuits and upheld the unfair election results influenced by the KMT, but also actively promoted constitutional interpretations that expanded the scope of punishment for treason. On the other hand, the disciplinary action taken against Judge Shang Wei-Shu in 1963 due to her ruling in the Tang Chuan-Zong case indicates that there were still Mainlander female judges who passively resisted authoritarian judiciary practices, even at the cost of facing consequences.

This thesis then examines the responses of Mainlander female judges during the transition of authoritarian regime, using the growing number of Taiwanese female judges as a comparative reference. It analyzes whether the advantage of ethnicity is gradually diminishing and how Mainlander female judges respond to political transitions and women's movements. By comparing the proportion of populations, the proportion of women trainees from the Judicial Training Institute by province, and the promotion status of Taiwanese female judges, this thesis finds that, compared to their Taiwanese female counterparts, Mainlander female judges still enjoy advantages in participating in judicial examinations after receiving university education and in political appointments to judicial positions. However, the policy of localization consistently excludes Taiwanese female judges from the judicial system. The impact of the women's movement and the democracy movement on authoritarian regimes has also led to challenges by Mainlander female judges against laws that perpetuate gender inequality and authoritarian judiciary. Grand Justice Fan Shun-Shiang, participated in official civil law amendments, aiming to propose reforms to the marital property system that are based on substantive equality and take into account the protection of both housewives and working women. This mirrors the efforts of Mainlander female judges like Hsieh Chi-Da in the late 1980s, to mobilize judicial reform.

Based on the findings of the above research, this thesis argues that as members of authoritarian government courts, Mainlander female judges must confront political interference in the authoritarian judiciary. This also plays a role in both consolidating and transforming Taiwan's authoritarian regime. Additionally, gender identity consistently influences the workplace situation of Mainlander female judges, even though the principle of judicial neutrality often hinders their ability to change unequal laws through judgments. Reviewing Taiwan's judicial practice during the authoritarian period, characterized by the absence of gender equality and judicial independence, will help us understand the historical origins of contemporary Taiwan's Judicial Yuan's excessive powers and the imbalance in gender representation among the justices. This reflection can guide us in designing a judicial system that upholds the values of gender equality, judicial independence, and democratic oversight.