論文化辯護於我國刑事判決中之實踐方式
—聚焦於原住民族與東南亞外籍移工、新移民比較

任何多元文化社會，若要真正落實其「多元性」，則國家勢必要能寬容並尊重少數弱勢族群文化之獨特性，避免其遭由主流文化定義之政治、社會、法律背後價值所宰制、同化。在此反思下，「多元文化主義」自美國揭竿而起，旋風式影響全球。臺灣原住民亦承接了該思潮，推動一波又一波爭權運動，始讓國家正視其具獨特文化之事實。尤其在刑法與之常相衝突的領域中，藉由立法、法學解釋方法對原住民文化退讓出一部分空間。惟，自刑事實證法與原住民文化仍舊層出不窮的「文化衝突」案例觀之，現行做法顯有不足。此外，在我國尚有另一具獨特文化之族群為東南亞外籍移工、新移民，雖和原住民有不同脈絡，但同樣皆為憲法「實質平等原則」、「國家中立性原則」、「國家寬容原則」，並國際相關公約要求下，國家須特別考量到其弱勢處境，對其文化適度尊重的族群。然而，從其於刑事上涉「文化衝突」之案例看來，國家對其文化考量程度顯得過度保守，甚至和原住民相較，可能存在基於身分，不當的差異對待。故本文整理出學說、實務論述應對原住民文化特別考量的理由，並分別將此二族群檢視、比對。認為合理的結論應為基於兩者之同，兩族群文化在刑事領域中皆需受到尊重；惟基於兩者之異，國家刑罰權退讓程度也應有所別。從而借鏡「文化辯護」──要求法律必須考量到行為人之獨特文化背景，而給予一定減免或免除罪責待遇的方式。該概念在美國、德國法中不同的思考、發展，使對原住民就現有作法外，承認其可能構成德國學理上之「良心犯」，進一步在文化與實證法兩方價值間尋求平衡。而對東南亞外籍移工、新移民，也應參酌美國實務做法，透過結合「禁止錯誤」的概念，實質考量其因文化影響而有可能不知我國實證法規範的事實，使該族群成員有能依刑法16條得到免除刑責，或依情節減輕其刑待遇之可能。

關鍵字

多元文化；文化衝突；文化辯護；原住民族；外籍移工；新移民

並列摘要

To truly implement “cultural diversity” in a multicultural society, and to avoid the vulnerable social groups being dominated and assimilated by the political, social, and legal values defined by the mainstream culture, the state must be able to tolerate and respect the uniqueness of the cultures of the few vulnerable social groups. Under this reflection, "multiculturalism" started to develop from the United States and rapidly exert a great influence on the world. Taiwanese indigenous peoples have also undertaken the thoughts, promoted movements one after another as to strive for their rights, and prompted the country to face up to the fact that they own their own unique culture; therefore, the state should spare more space for aboriginal culture in terms of legislation and legal interpretation, especially in areas where criminal law often conflicts with their culture. However, in view of the fact that there are cases that continuously emerged because of the conflict between the aboriginal culture and empirical criminal law, the current practice is obviously insufficient. In addition, there is another ethnic group with a unique culture here in Taiwan: the Southeast Asian migrant workers and new immigrants. Although they have different contexts from the Taiwanese indigenous peoples, “the principle of substantive equality", "the principle of neutrality ", "the principal of national tolerance" under the constitutional law and relevant international conventions still require the state to consider their disadvantaged situation and respect their culture. However, judging from the criminal cases which involved "cultural conflict", the state seems to be overly conservative in terms of the degree that cultural factors are considered. If to compare Southeast Asian migrant workers and new immigrants with Taiwanese indigenous peoples, different and improper treatments may even be found because of their identities. Therefore, this article sorts out the reasons that theories and practical discourses should take special consideration of the aboriginal culture, and further examines and makes a comparison between the Taiwanese indigenous peoples and the Southeast Asian migrant workers and new immigrants. Reasonable conclusions should be based on the similarity of the two, the culture of both ethnic groups needs to be respected in the criminal field; while based on the difference between the two, the degree of concession of the national penalty power should be different. To reflect on “cultural defense”, the law must consider the unique cultural background of the actor, and offer a certain way of reducing or exempting the guilt. The different thinking and development of the concept in American and German law, apart from the basis of the current practice toward the Taiwanese indigenous peoples, also admit the notion might be possible to form “prisoner of conscience” mentioned in the German studies, so to seek a balance between the values of culture and empirical criminal law. Foreign migrants and new immigrants from Southeast Asia should also refer to the practical actions taken in the United States. By combining the concept of "ignorantia juris non excusat", which consider the fact that the Southeast Asian migrant workers and new immigrants may not know the norms of our country’s empirical law due to cultural influences, they can rely on Article 16 of the Criminal Law, and possibly be exempted from criminal liability, or may reduce its criminal treatment according to the circumstances.