莊杏茹

Hsing-Ju Chuang

正當法律程序、裁判員法、直接審理、言詞審理、事實審、上訴審查、事後審查審、法律審、評議、科刑表決原則

Due Process of Law, Saiban-in Act, Principle of Immediacy, Principle of Orality, Fact Trial, Appeal Review, Ex-post Review, Law Review, Deliberation, Rule of Sentencing Vote

　　上訴制度旨在審查救濟，至關體系正義與公平審判。稟於整體證據構造理解爭點是否藉兩造攻防在審判中釐清，真實發見與科刑效果是否允妥，當是公民參與刑事審判調合實體法與程序法應合之表現。嚴格的評議量刑規範，記明爭點評議意見，得規範心證恣意之危險，有助上訴法院審查刑之選擇、刑期，乃至科處財產刑之範圍，科刑對應具體個案內容，故立法允之裁量餘地，責任衡酌須以客觀證據之質、量、內容使行為責任評價明確，各界討論量刑當否，須論及上訴審查評議量刑程序及其結構，處理量刑當否，應落實評議量刑規範，使違法情節與刑罰實質對稱。

　　This article discussed deliberation/sentencing rule concerning fundamental rationale for the evidence reliability and its application to Saiban-in practice how evidence proved the truth and punishment be determined by rule of thumb and rule of logistic at the appellate levels of the scope of judicial review. The adversarial process is relevant to proof of factfinding and penalty which would be best served by citizen participation in criminal trial. Rule of deliberation and sentencing vote, the minutes of issues discussing in deliberation provide appeal court to discern sentencing choice, giving the penalty, mitigating and aggravating punishment, the scope of fines catalogue as well as reducing arbitrariness of evidential weight in criminal proof. Adequately punishment is permissive to judicial officials that should be closely discreet into qualitative, quantitative evidence and circumstance evidence under facts to determine the specific responsibility and actual penalty differently in each case. To the adversarial model which develops facts at the trial phase, proper punishment also should be regulated by deliberation and sentencing rule. Within the concept of due process of law, for analysis to Saiban-in court debate on issues and find truth with rule of deciding the penalty stand in for both of high court and the Supreme Court on appellate levels. All the facts on which the evidence of guilt or not guilt is being evaluated are stated in reasoned judgment that indicated the case from the facts on which the evidence is specific imposed on the punishment.