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司法有以平常心處理扁案嗎?
Was Unbiased Judicial Discretion Exercised in the “Abian Case”?

◎ 黃瑞華
Huang Rei-Hua

前總統陳水扁因龍潭購地案有罪確定坐牢。該案基本事實「吳淑珍牽線幫辜家以市價賣土地給政府,收取辜家二億元」;珍稱此屬民間土地仲介佣金,最高法院則認珍是透過扁的影響力才使政府決定購買,扁珍應成立「職務上行為收受賄賂罪」。

Former President Chen Shui Bian was found guilty and sent to jail for the “Long-Tan Land Deal Case”. In this Case, the Court found that “ Wu Shu-Jen brokered a deal to help Koo’s family to sell a parcel of land to the government at the market price and received NT$2 billion dollars from Koo’s family.” Wu stated that the payment to her was her agent fee for brokering the deal. However, the Taiwan High Court decided that Wu brokered the deal through the influence of Chen’s presidential power. Therefore, Chen and Wu committed the “crime of accepting bribes to influence the action of the official in the discharge of their public duties and powers.”

 

本案(包括收受陳敏薰款項事)有罪與否關鍵,在「何謂職務上之行為」?最高法院自二四台上三六○三、五八台上八八四判例起,均採「法定職權說」,更在諸多判決闡明必須是「依法令具有法定職務權限範圍內之具體特定職務行為」(七二台上二四○○、七三台上三二七三、九八台上三九五、九九台上九四○判決);且判例明揭:「不法報酬苟非關於職務行為,即不得謂為賄賂」(七○台上一一八六判例),自無成立「職務上行為收受賄賂罪」問題。

The guilty verdict of this Case (as well as a separate case related to accepting money from Chen Min-Shin) depends on the definition of “the action of the official in the discharge of their public duties and powers.” In the past, the Taiwan High Court had adopted the “Legal Definition of Public Duties and Powers” based the precedents of Case#24TU3602 and Case#58TU884. In the decisions for many other cases (e.g., Case#72TU2400, #73TU3273, #98TU395, and #99TU940), the courts specifically stated that the definition of public duties and powers must be within “those specifically defined by law”. In these precedents, the courts also clearly stated “if illegitimate kickbacks are not related to the legally defined public duties and powers, they should not be considered as bribes (Case#70TU1186).” Based on these precedents, there should be no crime of “accepting bribes to influence the action of the official in the discharge of their public duties and powers” in the “Abian Case” based on the legal definition of presidential duties.

 

總統法定職權載明於憲法及增修條文,政府是否購買私有土地並非總統法定職權。若採最高法院判例及一貫見解,本案即不成立「職務上行為收受賄賂」罪。

Presidential duties and powers are clearly specified in the current ROC Constitution and its Amendments. The decision to purchase private lands by the government is not within the Presidential duties and powers defined by law. If the legal rules and resolutions of legal disputes applied in those precedents are used by the Taiwan High Court for the “Abian Case”, the crime of “accepting bribes to influence the action of the official in the discharge of their public duties and powers” was not committed.

 

最高法院謝俊雄、陳世雄、吳信銘之合議庭變更該院及該庭既定見解「法定職權說」(九五台上三二一八、九六台上四八判決),改採「實質影響力說」,認職務上行為「只要與職務具關聯性,實質上為職務影響力所及」即屬之,因此判定阿扁有罪。

However, the Joint Court judges, Hsieh Jein-Hsiung, Chen Shi-Hsiung, and Wu Sin-Min, abandoned the “Legal Definition of Public Duties and Powers” applied in the previous legal rules and common resolutions of their own courts (Case#95TU3218 and Case#96TU48) and adopted a different interpretation based on “Presumed Actual Influence”. In this new interpretation, “anything which is related to or can be influenced by the duties and powers of an official” is considered within the legally defined “Duties and Powers”. With this new interpretation, this Joint Court reached the final guilty verdict against Chen.

 

何謂「實質影響力」言人人殊,將使公務員「職務界限」不明,形同沒有「職務範圍」,違背判例所揭「職務範圍」明確性意旨。以「目的性擴張」的解釋方法擴大「職務上行為」內涵,有違罪刑法定主義「對被告不利事項不得為目的性擴張」之解釋原則。

However, it is subject to debate regarding what constitutes a “Presumed Actual Influence”. This uncertainty renders the “Duties and Powers” of an official ambiguous and not legally defined, which is a direct violation of the rules applied in the above cited precedents in which “Duties and Powers” are limited only to those defined by law. Using “Purposive Approach to expand the meaning of law” and subsequently expanding the meaning of “Duties and Powers” are against the Principle of Legality in defining a criminal offense. This Principle states that “the purposive approach in statutory interpretation should not be used to expand the meaning of law unfavorable to the defendant.”

 

本案在程序上也有可議處。最高法院刑事庭曾多次行言詞辯論,本件對「職務上行為」定義捨棄一貫見解,改採「實質影響力說」,其法律見解之變更顯具「原則重要性」,理應行言詞辯論,落實被告訴訟防禦權之保障。未行言詞辯論逕採「實質影響力說」定扁於罪,為突襲性裁判。

There were procedural controversies in how the High Court decided the “Abian Case”. It is common for the High Court to debate and conduct cross-examination to reach a resolution for legal disputes. When the High Court abandoned the “Legal Definition of Public Duties and Powers”, which were applied in the previous legal rules, and instead adopted a different interpretation based on “Presumed Actual Influence”, it resulted in a “highly significant change in legal discretion”. Therefore, the High Court must allow debate and cross-examination before making this change to protect the rights of defendants. Because the High Court unilaterally adopted the new interpretation of “Presumed Actual Influence” without allowing debate and cross-examination and subsequently found Chen guilty based on the new interpretation, this guilty verdict is a case of “Surprise Judgment” or “rushing to judgment without due hearing process.”

 

資料顯示,最高法院自為實體有罪判決迄今僅七件,其中六件案情單純,本件判決共八萬餘字,案情繁雜,卻割裂處理,部分自為有罪判決,此處理方式實務上罕見。

The records show that there are only seven cases for which Taiwan High Court issued guilty verdict by itself. Six of these cases are simple and clear-cut. However, this “Abian Case” is highly complicated based on the fact that the ratio decidendi contains over 80,000 words. With a Case this complicated, the High Court, however, did not consider the Case as a whole but issued guilty judgment on only parts of the Case. The procedure that the High Court followed to issue its ruling for this Case is indeed highly unusual.

 

本案於地院「中途換法官」,最高法院判決實體上違反判例及刑法第一條「行為之處罰,以行為時之法律有明文規定者為限」規定;程序上則違司法慣例。令人想問司法有以平常心處理扁案嗎?

The legally assigned judge for this Case was removed by an executive order in the midst of the trial at the District Court. Moreover, the High Court decided this Case by discounting the precedents and in violation of Article #1 of Criminal Law, which states “A punishable act must be within those defined by the Statute at the time of the act”. Judging from the fact that the High Court violated common law in its ruling, it is fair to ask the very question:

“Was Unbiased Judicial Discretion Exercised in the Abian Case?”


(作者現任台灣高等法院法官兼庭長)
2012.04.16

(Author is a Judge and a Chief Justice of the Taiwan High Court)
April 16, 2012

 

( Note:It was thanks to Prof. Jay Tu to tranlate this article into English. - Taiwan eNews)

 

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