Trade with Justice,ocusing on the Criminal Judicial Function of Taiwan''s Deferred Prosecution System
Date Issued
2008
Date
2008
Author(s)
Wang, Wen-Ho
Abstract
Summaryhe idea of law is but justice. Law judgments, including evaluation of behavior, evaluation of system, and the criteria of evaluation, are always related to justice. owever, justice has a “Protean Face”. Its changeable face really confuses people when they try to unveil the implicit meaning behind justice. Justice, the absolute criteria of evaluation, has to handle the complex social phenomena properly. Naturally, the face of justice is changeable. For centuries, thinkers and jurists have proposed various doctrines of justice based on philosophy theory. Although there are some differences between these doctrines, references to the scholars’ opinions and a brief introduction of influential justice doctrines and forming background of important society systems might help to reduce our confusion when we point questions of justice.rder elements of law focus on the question whether a group or public society adopts some organization rules and behavior standards. What the concept of order concerns is the form rather than the substance of society living. Nevertheless, what justice concerns are the content of legal rules and systems, the influence on the mankind, and the substantial value to improve the mankind happiness and civilization construction.ustice, the substantial value of civilized society, is the final resolution of all the value judgments. Nevertheless, justice is not just a slogan. When facing the various phenomena, including behavior, system, or criteria of evaluation, justice should have a function of evaluation to maintain the goal of the necessary of a civilized society. In other words, it should satisfy individual reasonable desire and contention, improve the production, and foster the unity of the society simultaneously.ustice, the absolute criteria of evaluation, should evaluate justly. Because of the differences of grounds of evaluators and the diversity of the evaluated objects, it is of paramount importance that the criteria of evaluation and the process of evaluation work justly. When being justly evaluated, the underlying meaning of justice could be correctly interpreted, concretely realized, and prove its value. The evaluation of justice not only mechanically protects the formal legal order but also actively reaches the above-mentioned goals of justice, and realizes the substantial value of civilized society to maintain the max interest of the majority. In other words, it pursues the maximization of the content of legal idea, purposeful public interest, and does its best to eliminate or abate existing pains, avert avoidable pains, and reduce inevitable pains. In this point of view, all kinds of justice doctrines result from of different evaluators, criteria of evaluation, and evaluated objects have to undergo the process of interpretation, argument, and integration to form intersubjective justice that owns objective basis. When we pursue the idea of justice, through the argument process from diverse justice doctrines to objective justice doctrine, diverse doctrines have to be corrected, adjusted, and integrated. I tentatively name the process ”the negotiation with justice”. Its purpose is to pursue justice and attain the goals of objective justice and substantial value owning the ability to reach a common consensus through the adjustment of diverse justice doctrines. Therefore, we mainly negotiate with the spirit, the idea of justice, rather than the interest. Of course, the process of negotiation should be rational and fair.he principle of separated power results from the objective history reality of the ugly side of the humanity. Based on the deep realization of political departments’ interest-chasing essence, constitutionalism precursors of many countries institute it as a fire wall to limit the government power, maintain public interests, and work as a significant mechanism to guarantee people’s privileges. It is one of the greatest theories building the basis of modern democratic countries ruled of law. Its starting point is also to maintain the substantial value of justice.mong the three separated powers, the judiciary is the final interpreter, evaluator, and executor of all lawful facts. Because justice is the core of the axiology of law, the handling of judicial facts, especially the criminal facts, are all involved with justice, no matter the evaluation of justice, the evaluation of law, or criteria of evaluation. Therefore, we can say that the evaluation of justice is the core of judicial work.ecause the idea of justice is related to rights, requests, and obligations, it has a strong connection with the idea of law. It is usually the sign of law revolution that the idea of justice of a society begins to improve and change. After 67 dormant years of our code of criminal procedure, near half of the articles have been suddenly modified on a large scale from 1995. The underlying reason is that the idea of justice of the whole society changed and the idea of justice existing in the code can’t satisfy the demands of modern society. As a result, the modification of law becomes an inevitable trend. n the period, there was just the movement of constitution reformation going with the stream, the third movement of democracy reformation, in the 1990s. After six amendments of the constitution, the judiciary movement boosted to fulfill the protection of constitution privileges was formally connected with the movement of constitution reformation, became an important part, and led to a major correction of Taiwan’s criminal procedure. It was the time that the deferred prosecution was built into our Taiwan’s criminal procedure. he deferred prosecution is part pf the prosecutorial discretion. Generally speaking, the prosecutor is also the judiciary. However, what is the precise position of the prosecutor? Does the position make any difference in the system of Taiwan’s criminal procedure? Why can the prosecutor have the discretion to evaluate the behaviors of the defendants? Does it violate the principle the principle of the separation of the prosecutor and the judge? Does it infringe the judge’ exclusive jurisdiction which is revealed in Article 80 of the Constitution? Does it violate the principle of the equality of the prosecutor and the defendant? Is it possible to recover inquisitorial system and trespass constitution privileges? Is it legitimate when the defendant’s behavior is evaluated by a prosecutor? How can we justify the discretion of the prosecutor with justice? These subjects are our priorities. ince the deferred prosecution is a controversial system conflicting with many principles of criminal procedure, many questions may arise. Why did we transplant it to Taiwan? What are the legislative goals? What are the main structural changes? How is the relationship between it and the changes? Supposing the existing principles of criminal procedure are just, any conflict with them is unjust, justice is uncompromising, and one injustice is only tolerated when it is necessary to avoid one larger injustice, we may wonder whether the transplantation of the deferred prosecution has a strong basis that our tolerance of the injustice is necessary to avoid one larger injustice. It is an important point of observation to evaluate the system with the justice theory. esides, we have to realize further the content of the deferred prosecution and the relation between it and other systems under the new major structure of criminal procedure, reformatory adversary system. Meanwhile, we have to discuss the coming impact after the modification of the code of the criminal procedure. Is it could fulfill justice in every respect? What kind of judicial function does the deferred prosecution system have in the circumstances? Do these functions comply with the purposeful or public justice? How is the dialectical relation between them? How should we correct and reconcile legal ideas of existing basic criminal procedure principles and disadvantages of the deferred prosecution system to maintain the criminal judiciary function of the deferred prosecution system and to avoid unjust consequences including the violation of the principle of equality and the principle of legal certainty resulted from the confliction between the deferred prosecution system and basic principles of criminal procedure? The evaluation of legal ideas is another important subject.ast, in order to avoid the injustice when the deferred prosecution system is enforced, I modestly discuss some problems of the deferred prosecution system to foster its criminal judiciary function and to reach its anticipated purposeful or public justice.ey words: Justice, Axiology of law, Public Interest, Dialectics, Nature of Things, judicial Reform, Deferred Prosecution
Subjects
Justice
Axiology of law
Public Interest
Dialectics
Nature of Thing
judicial Reform
Deferred Prosecution
SDGs
Type
thesis
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