軍事審判與軍隊的建立

軍隊保家衛國需要軍紀，需要上命下達，迅速果決，一般適用於民間之刑法、刑事訴訟法無法因應此一需要戰鬥力、團結力、服從心的特殊團體，而有以陸海空軍刑法、軍事審判法加以規範的必要，以兼顧人權及紀律。2013年我國因發生洪○丘事件，立法院在強大輿論壓力下迅速通過凍結平時軍事審判之施行，將該案移送地方法院審理，雖然平息了示威抗議，然連帶影響了軍中的管教問題，軍人士氣空前低落，軍校招不到學生，軍法官前途無人聞問，優秀青年望而卻步，法院累積案件雪上加霜，裁判品質未見提升。由於修法結果仍保留軍事審判之制，以應戰時之需，為免一旦發布戒嚴或發生戰事，反應不及，又為配合大法官釋字第436號解釋所為之修法指示，本文建議建置新的軍事審判體系，將軍事審檢分立，消除民眾對審判不公之疑慮，由國防部援法務部之例，建制軍事檢察體系，由最高法院檢察署檢察總長指揮下級軍事檢察機關辦理軍中犯罪之偵查工作，將各級軍事法院改由司法院建置，並輔導軍法官考取司法考試加以任用，使軍事法院得於平時開始運作，以其人力為法院分擔軍人犯罪之審判工作，以備戰時能迅速擴大承接戒嚴法所定管轄諸罪，達到機關分治、兼顧人權、治軍、吸引人才同為國用之目的！

關鍵字

軍事審判；司法審判；統帥權；法官；檢察官；軍法官

並列摘要

The army demands discipline, decisiveness and obedience. The Criminal Code of Republic of China and the Code of Criminal Procedure are not totally suitable for such a group that highly values fighting capacity, unity and obedience. That's why we need Criminal Code of the Armed Forces and Code of Court Martial Procedure, in order to balance human rights and discipline. In 2013, due to the occurrence of the Hong, which stirred the crowd to protest, the law was rapidly amended by the Legislative Yuan. No more court martial during peacetime ever since then. All military criminal cases then were transferred to civil courts. As a result, the demonstration was calmed, but the discipline in the military became an issue. The morale of the troops is sinking lower, the enrollment of military academy is diminishing, the prospects of Jags are uncertain, promising youths step backwards from the military, the cases of the court accumulate, and the quality of trial is not raising. In order to meet the need during the war, court martial was kept in the revision. To comply with the J.Y Interpretation No.436, this article suggests that a new court martial be established, and trial and prosecution be separated and independent, so that the doubts of the crowd could be dispelled. The Ministry of National Defense might refer to the example of Ministry of Justice, establishing ＂Military Prosecution＂ system which is directed by the Chief of the Supreme Court Prosecutor Office, responsible for crime investigation. Moreover, military courts should be transferred to the supervision of Judicial Yuan. Jags should pass the judicial special examination and be appointed judges. After that, military courts could start functioning during peacetime with this manpower sharing the load of trial, and prepare for the crime at war time. In the end, we could achieve the goal of making every administrative organization independent, reaching a balance between human rights and military management, and attracting talent people working for our country.