- 學位論文
我國少年司法體系執行修復式正義之研究
A STUDY ON RESTORATIVE JUSTICE AS PRACTICED IN TAIWAN'S JUVENILE ORGANIZATION
摘要
有關修復式正義的理念最早是緣起於紐西蘭處理少年犯的審判方式，藉由加害人、被害人、雙方家族、社區居民共同參與社區審判會議、面對面坦誠溝通、維護加害人尊嚴、保障被害人權益、修補社會關係並減低再犯率，企圖從根本之道來解決少年犯的問題，避免今日的少年犯淪為明日的成人犯。除了紐西蘭外，許多先進國家，例如澳洲、加拿大、美國、日本、德國等國，對於少年的刑事司法制度也紛紛引用了修復式正義的作法。 本文的研究目的在瞭解我國刑事司法人員運用修復式正義處理少年事件之實務現況及作法、探究我國刑事司法人員運用修復式正義處理少年事件之網絡關係、瞭解我國刑事司法人員運用修復式正義處理少年事件時有何窒礙難行之處、我國如何將注重人本關懷的修復式正義妥善運用在少年司法體系與預防政策上、以及探討有關少年事件處理在政策、組織、人力、資源、法令等的相關建議。 在研究方法上，作者採文獻分析法及深度訪談法為主。除廣泛蒐集國內、外有關少年犯罪、政策執行、政策網絡及修復式正義相關論著、研究報告、期刊、學位論文、網路資源，進行綜整研析歸納，以瞭解修復式正義的意義、概念、理論內容及執行作法外，並親自訪談我國執行少年事件處理法之相關刑事司法人員共21名，受訪者均為服務於台北市、台北縣、桃園縣地區相當資深的實務界人士，包括：法院系統人員：司法院少年及家事廳法官、少年法庭（院）法官、檢察官、少年調查官、少年保護官；警察系統人員；少年輔導及矯治人員。 本文研究發現： 一、法院系統人員之研究發現：（一）認同修復式正義的理念，實務上也有類似修復式正義會議的協商式審理的運作模式，惟現行條文並未具體呈現「修復式正義」之字句，也未明確規定被害人一定要到庭。（二）少年法院以少輔會為溝通聯繫網絡的平臺。（三）目前我國對於少年事件的處理還是以少年法庭法官具有實權，但法官也希望將來民眾的修復式正義觀念成熟時，能朝向社區處理的模式發展。（四）社會資源不足與分散，執行人員認知不夠，仍有待積極規劃與整合。（五）肯定修復式正義的理念，但認為相關的配套措施，諸如：修復式正義觀念的推廣程度、教育制度的改善、政府的支持度、家長及少年的配合度等相關因素皆會影響執行成效。 二、警察系統人員之研究發現：（一）認同修復式正義，且實務執行上亦有類似的作法，但因未有法律正式授權，合法性不足，因此有必要修法與授權。（二）警察以少輔會為溝通聯繫網絡的平臺。（三）警察身兼執法者、關懷者、輔導者、教育者、保護者等多重角色，但仍需加強法律與心理輔導的專業性。（四）社會資源不足與分散，執行人員認知不夠，仍有待積極規劃與整合。（五）肯定修復式正義的理念，但認為相關的配套措施，諸如：修復式正義觀念的推廣程度、警察的法令授權不足、政府的支持度、國內相關單位未能針對少年個案情形尋求整體的解決方法以及家長及少年的配合度等皆會影響執行成效。 三、少年輔導與矯治系統人員之研究發現：（一）肯定修復式正義理念，主張對於少年採取先行政後司法的處理方式，始終抱持著人性本善的信念。（二）少輔會為社區網絡協調聯繫平臺。（三）具備社區協調能力但仍需加強法律專業，認為目前還是以法院有實權舉行修復式正義會議。（四）社會資源不足與分散，仍有待積極規劃與整合。（五）肯定修復式正義的理念，但認為相關的配套措施，諸如：修復式正義觀念的推廣程度、修復式正義會議的合法化、政府的支持度、以及家長及少年的配合度等皆會影響執行成效。
並列摘要
The idea of restorative justice first originated from New Zealand, where juvenile crimes are handled in a way that would incorporate efforts from victims, offenders, families and communities, which fosters dialog between them, protects dignity of offenders, ensures reparation and apology to victims, restores social relationships and reduces recidivism. By doing so, communities that practice restorative justice wish to address juvenile crimes in more fundamental ways that would eliminate such crimes and prevent offenders from recidivism when they grow up. Australia, Canada, United States, Japan and Germany have all followed suit by adopting restorative justice in their justice systems. This study aims at probing the status quo and ways local law practitioners practice restorative justice, also to find out the difficulty in the process when practicing restorative justice, how restorative justice can be applied in preventive policy and juvenile criminal justice organization, and to review suggestions on policy, organizations, human resources, information and ordinances concerning juvenile crimes. Methodologically, this study infuses archival analysis with in-depth interviews. Other than incorporating related writings from periodicals, academic studies and thesis on juvenile crimes, policy implementation, policy network and restorative justice to help define restorative justice and its concepts ,contexts and practices, the author also interviewed 21 practitioners from juvenile justice related areas in northern Taiwan region, including courtroom personnel, judges from Juvenile & Family Department of Judicial Yuan, judges, prosecutor, investigation officers and probation officers from Juvenile Division, police officers and juvenile behavioral counselors and coaches. This study finds that: 1. According to interviews from courtroom personnel, a) they find restorative justice acceptable, and have seen such negotiations and conferencing proceeded, although, the absence of ‘restorative justice’ in the current ordinances prevents further realization of its future practices, and also allows victims’ absence in courtrooms. b) Juvenile court sees Juvenile Guidance Committee as their platform for communication. c) Even though judges are entrusted with the rights in handling juvenile crimes, community restorative boards or other similar institutions are expected to take the role of judges when public ideas of restorative justice mature. d) With limited social resources, in addition to the poorly informed practitioners, more carefully planned integration of both is needed when putting restorative in practice. e) Restorative justice is an idea that is widely accepted here, but there are factors that would act as setbacks when putting the idea through: our current justice system doesn’t quite catch up with it, police officers are not empowered for their parts, not enough people have learned of restorative justice, the lack of government support, a comprehensive resolution is still missed among related institutes and the lack of cooperation from parents and litigants. 2. Interviews on law enforcement personnel have found that: a) There have been wide acceptance of restorative justice among police officers, and likewise practices have been applied, but the legitimacy is in want if further ordinance amendment is not proceeded to acknowledge officers their powers. b) Police officers see Juvenile Guidance Committee as their platform for communication. c) With multiple roles entrusted to them, police officers work as law executors, care-givers, counselors, educators and protectors at the same time, but their knowledge of law and psychological counseling needs further improvement. d) With limited social resources, in addition to the poorly informed practitioners, more carefully planned integration of both is needed when putting restorative in practice. e) Restorative justice is an idea that is widely accepted here, but there are factors that would act as setbacks when putting the idea through: our current justice system doesn’t quite catch up with it, police officers are not empowered for their parts, not enough people have learned of restorative justice, the lack of government support, a comprehensive resolution is still missed among related institutes and the lack of cooperation from parents and litigants. 3. According to interviews on counselors and juvenile delinquents behavior correction personnel we found that: a) They’re positive about restorative justice, they argue that administrative efforts should be devoted first before any legal measures are to be taken. They also argue the importance of having faith in the goodness of people when dealing with such incidents. b) Juvenile Guidance Committee should be treated as platform for coordination amongst communities. c) Personnel in these institutes are equipped with coordination ability in communities but there are not fully informed in legal ordinances. Therefore, restorative conference is better trusted to courtrooms. d) With limited social resources, in addition to the poorly informed practitioners, more carefully planned integration of both is needed when putting restorative in practice. e) Restorative justice is an idea that is widely accepted here, but there are factors that would act as setbacks when putting the idea through: our current justice system doesn’t quite catch up with it, police officers are not empowered for their parts, not enough people have learned of restorative justice, the lack of government support, a comprehensive resolution is still missed among related institutes and the lack of cooperation from parents and litigants.