| 题名 |
犯罪被害人保護在德國法中的發展－以犯罪被害人在刑事訴訟程序中的地位以及“犯罪人與被害人均衡協商暨再復原”制度爲探討中心 |
| 并列篇名 |
On the Point of the Protection of the Crime Victim in the Criminal Procedure in Germany |
| DOI |
10.6199/NTULJ.2005.34.03.03 |
| 作者 |
盧映潔(Ying-Chieh Lu) |
| 关键词 |
犯罪被害人 ； 被害人保護 ； 修復式正義 ； 調解 ； 損害再復原 ； 均衡協商 ； 影視訊問 ； crime victim ； protection of crime victim ； mediation ； compensation of crime victim |
| 期刊名称 |
臺大法學論叢 |
| 卷期/出版年月 |
34卷3期（2005 / 05 / 01） |
| 页次 |
165 - 276 |
| 内容语文 |
繁體中文 |
| 中文摘要 |
德國在二十世紀七○年代隨著許多歐洲國家所興起的運動，反映出刑事法中被害人的權利與利益過於短少的問題。在各界的要求與議題辯論之下，一九七六年五月通過的「暴力犯罪被害人補償法」，由國家負擔起責任給予暴力犯罪被害人諸如疾病照顧與年金的幫助。其次，在一九八六年十二月通過的「改善刑事程序中受害者地位之第一次法」，簡稱爲被害人保護法(Opferschutzgesetz)，被害人的地位在德國刑事訴訟程序中才明顯地被加強。在十年之後，亦即在一九九八年十二月通過的証人保護法(Zeugungsschutzgesetz)，則進一步擴展到影視訊問的可能性，可省却被害人出現於審判程序中。此外，對於被害人利益關注所謂的「第二軌道」是從被害者學所發展出來，亦即在刑罰之外給予一個衝突協調機會，此乃發展中的國際運動的一部份，而「犯罪人與被害人均衡協商以及再復原」制度是這個運動的中心。德國立法者從二十世紀的九十年代開始便嚴肅地致力於這樣的運動之整體想法。首先在一九九○年少年法院法加以改革，其後，一九九四年十二月通過的「犯罪對抗法」，在刑法中也引進了損害回復及犯罪者與被害人協商制度作爲特別減刑的可能性，這樣的可能性也在一九九九年經由更進一步的法律在刑事訴訟程序中被額外加強。 有關德國刑事法體系中被害人保護的課題，其中被害補償議題，已見諸本文筆者的其他發表文章，在此不再重覆介紹。本文將針對犯罪被害人在刑事程序中的地位保障以及「犯罪人與被害人均衡協商暨再復原」制度兩大議題，分別詳細論述，俾使讀者就德國整體的被害人保護相關制度獲得完備的認識。 |
| 英文摘要 |
In Germany has itself, a movement originating in many European countries following since the 70er years of the 20. Century in the public debate and then also in the technical discussion as well as with the legislation organs more and more strongly the displeasure over it expressed, that the interests and right of the victim structurally too shortly come in the criminal right. As fruit of many demands and debates, that became in May 1976 in Germany a law about the compensation for victims of atrocities. The state took over the obligation to help such victims of force offenses with for example sick person welfare or a pension, that neither can still get help from a perpetrator from an insurance. It then lasted approximately 10 years after the law until also the position of victims was clearly strengthened in the German criminal process. This happened through this. First law about the improvement of the position of the injured person in the criminal procedure from December 1986. Since this shortly as victim protection law. The law marked the victim of the help of a victim lawyer can serve itself in the process. The possibility to exclude the public is widened in favor of the victim. The recompense the through the offense of suffered damage in favor of the victim becomes improves through the priority of the claims of the victim before the state claim to the fine at the criminal execution. Through the witness protection law of December 1998, further possibilities arrived arrived, according to the video interrogation, to spare the appearance about the victim in the main negotiation or the Beiordnung of a lawyer at state cost, if protection-worthy interests of the victim cannot be guaranteed differently. Second rail has developed the consideration of opera interests from the Victimology out. Among other things one found out with many victim examinations so that victims wish a real punishment of the perpetrator with a criminal penalty only with quite heavy offenses and especially reprehensibly dealing perpetrators. With middle-heavy or easy offenses, anyway in European countries, a quite different interest apparently stands in the foreground: The interest, to attain recompense of the damage and to get another balance for the pains and other unpleasant Tatfolgen if necessary. Besides damages and compensation for personal suffering, victims also often want to understand, however, why exactly they were involved themselves and not other people. Through a classic criminal procedure and of course really through the perpetrator's mere punishment is not managed from the way such a conflict. The idea, instead of a punishment or, if the action is so heavy that it from justice, expiation or vengeance reasons for penalty doesn't go to get a conflict balance also beside a punishment, part of an internationally increasing movement is meanwhile. Central parts of this movement are harm recompense oder/und Taeter-Opfer-Ausgleich. It runs so named under the bigger concept of this today altogether. Mediation (--which also in other fields of law as the area of the criminal right's growing meaning wins --) or the concept of this. Restorative justice, therefore the balancing or restoring criminal jurisprudence. In Germany, the legislator has himself the thought property of this movement since the 90er years of the 20. century for the first time seriously. First, the youth court law was reformed in the year 1990. Since then, already the youth prosecuting attorney can give up the transaction of a Strafverfahrens against young perpetrators between 14 and 18 years, as an exception also against young perpetrators between 18 and 21 years, if the perpetrator gained a balance with the victim or took the trouble therefore after best own strengths anyway to gain such a balance (§45 paragraph 2 of the youth court law ). JGG. In the later proceeding , the youth judge can discontinue the procedure (§47 JGG). If a main negotiation and a judgment occur, the judge can order the recompense of the damage (§15 JGG) instead of a penalty or can give the instruction at the perpetrator to try to obtain Taeter-Opfer-Ausgleich intensively (§10 JGG). With the Verbrechensbekaempfungsgesetz of December 1994, the damage recompense and the Taeter-opfer-Ausgleich were introduced also in the adult criminal right as special possibilities. These possibilities were reinforced additionally by further law by 1999 for the criminal process. Now, it is in a way that public prosecutor's office and court should keep an eye § 155 on it, whether doesn't come damage recompense or conflict balance in consideration between victims and perpetrators in all stages of the criminal process a StPO. Public prosecutor's office and court can discontinue the criminal procedure for the time being and can give the perpetrator the edition to do the damage again well or itself serious, to trouble about peace-speaking. In the rule, this then should happen through the turning on of a conflict mediator. If the total succeeds successfully, the procedure can finally be discontinued against the perpetrator without penalty, § 153 a StPO. If however a main negotiation because however the offense was quite heavy, occurs, the court can be content in the case of prevailing damage recompense through the perpetrator or in the case of sufficing peace-speaking with speaking the perpetrator guiltily and then refraining from penalty. With penalties for the year, the court can apply at least a milder range of punishment, § 46 a StGB. Quite generally, there is the possibility for the criminal court, recompense efforts of the perpetrator at every punishment generally criminal-extenuating, to take into account, §46 sales 2 StGB. |
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社會科學 >
法律學 |
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