本文將預設以應報論觀點為背景，探討在採「刑罰應與犯罪可非難性相當，二者應處於合比例、均衡關係」 之應報式罪刑相當原則，以及恪守行為責任論的前提下，有無證立前科作為量刑事由的可能。由於目前對前科之... more 本文將預設以應報論觀點為背景，探討在採「刑罰應與犯罪可非難性相當，二者應處於合比例、均衡關係」 之應報式罪刑相當原則，以及恪守行為責任論的前提下，有無證立前科作為量刑事由的可能。由於目前對前科之理解，多將其理解為從重量刑事由。因此，以下將先借鏡Andrew Ashworth的分類，將應報論視角下證成前科可加重量刑之理論，區分為兩種不同取徑：再犯加重模式（A recidivist premium）、初犯減輕效果漸失模式（Progressive loss of mitigation） ，並依序簡介與評論二種模式下，嘗試指出各理論的問題所在。以對兩種模式的檢討為基礎，本文最終會嘗試透過自身建構的應報理論，說明前科作為量刑事由的依據何在，並嘗試提出前科不得提高行為責任，僅可能作為從輕量刑事由的結論。
the main issue of this paper is clarifying the ethics of the capital punishment in East Asia. In... more the main issue of this paper is clarifying the ethics of the capital punishment in East Asia. In this paper, the approach of my study is dealing with this issue from the prospect of de jure law practicing. That is to say, I will analyze “the sentencing standard for the capital punishment (Shikei ryōkei kijun)” which is used by the Supreme Court of Japan and Taiwan.
In the section I, I would provide an overview with regard to the sentencing standard of the Supreme Court in Japan and Taiwan. Especially, I will indicate that the sentencing standard for the capital punishment used by the Supreme Courts of Japan and Taiwan shows that the blameworthiness of offense and the degree of infringement on the social value system are the crucial elements of the death sentence. That is to say, according to the punishment philosophy terminology, the sentencing standard for the capital punishment can be said to consist of retribution justice and positive general prevention. In section II, I would introduce Matthew Kramer’s t Purgative Rationale, which certainly provides a new perspective that "Offenders, through the death penalty, answer for criminal liability as moral agents, and bear moral responsibility towards the community." Nevertheless, this theory does not apply directly in interpreting the philosophical significance of the death penalty in East Asia, which has a different cultural context, because Kramer bases his theory on the Christ culture. Therefore, in the section Ⅲ, I will point out that theory which adopts similar interpretation in East Asian punishment philosophy could be found easily, and introduce "the moral responsibility theory (Dōgisekininron)" proposed by seiichirō ONO before the WW2. This theory argues that, when an offender commits a criminal act and takes moral responsibility, punishment not only retribution for offense but also maintains moral order and social value and promotes public welfare. Despite this theory is abandoned or modified after the WW2, the factors that make up this theory, such as Confucian Thought, collectivism, Buddhist thought, and the judiciary's view that punishment has the function of stabilizing the normative consciousness of the general populace, do not disappear in East Asian societies.
To conclude, by analyzing what supreme courts dealing with death Sentence and the sentencing standard for the capital punishment, this paper provides a more applicable way to indicate how the substance of the concepts introduced from the West, such as responsible, criminal liability, and retribution, are embodied in the death sentence and the sentencing standard of these Supreme Courts. Furthermore, I will outline the ethics of death penalty in East Asia.
Conference “ Ethics and Historical Memory"（Institutum Iurisprudentiae Academia Sinica）, 2020
The Taiwanese government open the process of Transitional Justice after thirty years of democrati... more The Taiwanese government open the process of Transitional Justice after thirty years of democratization. Therefore, The question is how the younger generation, who have never experienced the period of authoritarian rule, understand the history of that period and form their own memories about this history. And the other question is why the younger generation is responsible for remembering this history. Thus, in this study, members born from 1985 to 1995 who are involved in the “228 GongSheng Music Festival” and insist on transitional justice are targeted for interview. That is, this study clarifies the process of forming historical memory about the period of authoritarian rule in one's life experience and the cause of responsibility for memory through the in-depth interview.
本文將預設以應報論觀點為背景，探討在採「刑罰應與犯罪可非難性相當，二者應處於合比例、均衡關係」 之應報式罪刑相當原則，以及恪守行為責任論的前提下，有無證立前科作為量刑事由的可能。由於目前對前科之... more 本文將預設以應報論觀點為背景，探討在採「刑罰應與犯罪可非難性相當，二者應處於合比例、均衡關係」 之應報式罪刑相當原則，以及恪守行為責任論的前提下，有無證立前科作為量刑事由的可能。由於目前對前科之理解，多將其理解為從重量刑事由。因此，以下將先借鏡Andrew Ashworth的分類，將應報論視角下證成前科可加重量刑之理論，區分為兩種不同取徑：再犯加重模式（A recidivist premium）、初犯減輕效果漸失模式（Progressive loss of mitigation） ，並依序簡介與評論二種模式下，嘗試指出各理論的問題所在。以對兩種模式的檢討為基礎，本文最終會嘗試透過自身建構的應報理論，說明前科作為量刑事由的依據何在，並嘗試提出前科不得提高行為責任，僅可能作為從輕量刑事由的結論。
the main issue of this paper is clarifying the ethics of the capital punishment in East Asia. In... more the main issue of this paper is clarifying the ethics of the capital punishment in East Asia. In this paper, the approach of my study is dealing with this issue from the prospect of de jure law practicing. That is to say, I will analyze “the sentencing standard for the capital punishment (Shikei ryōkei kijun)” which is used by the Supreme Court of Japan and Taiwan.
In the section I, I would provide an overview with regard to the sentencing standard of the Supreme Court in Japan and Taiwan. Especially, I will indicate that the sentencing standard for the capital punishment used by the Supreme Courts of Japan and Taiwan shows that the blameworthiness of offense and the degree of infringement on the social value system are the crucial elements of the death sentence. That is to say, according to the punishment philosophy terminology, the sentencing standard for the capital punishment can be said to consist of retribution justice and positive general prevention. In section II, I would introduce Matthew Kramer’s t Purgative Rationale, which certainly provides a new perspective that "Offenders, through the death penalty, answer for criminal liability as moral agents, and bear moral responsibility towards the community." Nevertheless, this theory does not apply directly in interpreting the philosophical significance of the death penalty in East Asia, which has a different cultural context, because Kramer bases his theory on the Christ culture. Therefore, in the section Ⅲ, I will point out that theory which adopts similar interpretation in East Asian punishment philosophy could be found easily, and introduce "the moral responsibility theory (Dōgisekininron)" proposed by seiichirō ONO before the WW2. This theory argues that, when an offender commits a criminal act and takes moral responsibility, punishment not only retribution for offense but also maintains moral order and social value and promotes public welfare. Despite this theory is abandoned or modified after the WW2, the factors that make up this theory, such as Confucian Thought, collectivism, Buddhist thought, and the judiciary's view that punishment has the function of stabilizing the normative consciousness of the general populace, do not disappear in East Asian societies.
To conclude, by analyzing what supreme courts dealing with death Sentence and the sentencing standard for the capital punishment, this paper provides a more applicable way to indicate how the substance of the concepts introduced from the West, such as responsible, criminal liability, and retribution, are embodied in the death sentence and the sentencing standard of these Supreme Courts. Furthermore, I will outline the ethics of death penalty in East Asia.
Conference “ Ethics and Historical Memory"（Institutum Iurisprudentiae Academia Sinica）, 2020
The Taiwanese government open the process of Transitional Justice after thirty years of democrati... more The Taiwanese government open the process of Transitional Justice after thirty years of democratization. Therefore, The question is how the younger generation, who have never experienced the period of authoritarian rule, understand the history of that period and form their own memories about this history. And the other question is why the younger generation is responsible for remembering this history. Thus, in this study, members born from 1985 to 1995 who are involved in the “228 GongSheng Music Festival” and insist on transitional justice are targeted for interview. That is, this study clarifies the process of forming historical memory about the period of authoritarian rule in one's life experience and the cause of responsibility for memory through the in-depth interview.
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In the section I, I would provide an overview with regard to the sentencing standard of the Supreme Court in Japan and Taiwan. Especially, I will indicate that the sentencing standard for the capital punishment used by the Supreme Courts of Japan and Taiwan shows that the blameworthiness of offense and the degree of infringement on the social value system are the crucial elements of the death sentence. That is to say, according to the punishment philosophy terminology, the sentencing standard for the capital punishment can be said to consist of retribution justice and positive general prevention. In section II, I would introduce Matthew Kramer’s t Purgative Rationale, which certainly provides a new perspective that "Offenders, through the death penalty, answer for criminal liability as moral agents, and bear moral responsibility towards the community." Nevertheless, this theory does not apply directly in interpreting the philosophical significance of the death penalty in East Asia, which has a different cultural context, because Kramer bases his theory on the Christ culture. Therefore, in the section Ⅲ, I will point out that theory which adopts similar interpretation in East Asian punishment philosophy could be found easily, and introduce "the moral responsibility theory (Dōgisekininron)" proposed by seiichirō ONO before the WW2. This theory argues that, when an offender commits a criminal act and takes moral responsibility, punishment not only retribution for offense but also maintains moral order and social value and promotes public welfare. Despite this theory is abandoned or modified after the WW2, the factors that make up this theory, such as Confucian Thought, collectivism, Buddhist thought, and the judiciary's view that punishment has the function of stabilizing the normative consciousness of the general populace, do not disappear in East Asian societies.
To conclude, by analyzing what supreme courts dealing with death Sentence and the sentencing standard for the capital punishment, this paper provides a more applicable way to indicate how the substance of the concepts introduced from the West, such as responsible, criminal liability, and retribution, are embodied in the death sentence and the sentencing standard of these Supreme Courts. Furthermore, I will outline the ethics of death penalty in East Asia.
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In the section I, I would provide an overview with regard to the sentencing standard of the Supreme Court in Japan and Taiwan. Especially, I will indicate that the sentencing standard for the capital punishment used by the Supreme Courts of Japan and Taiwan shows that the blameworthiness of offense and the degree of infringement on the social value system are the crucial elements of the death sentence. That is to say, according to the punishment philosophy terminology, the sentencing standard for the capital punishment can be said to consist of retribution justice and positive general prevention. In section II, I would introduce Matthew Kramer’s t Purgative Rationale, which certainly provides a new perspective that "Offenders, through the death penalty, answer for criminal liability as moral agents, and bear moral responsibility towards the community." Nevertheless, this theory does not apply directly in interpreting the philosophical significance of the death penalty in East Asia, which has a different cultural context, because Kramer bases his theory on the Christ culture. Therefore, in the section Ⅲ, I will point out that theory which adopts similar interpretation in East Asian punishment philosophy could be found easily, and introduce "the moral responsibility theory (Dōgisekininron)" proposed by seiichirō ONO before the WW2. This theory argues that, when an offender commits a criminal act and takes moral responsibility, punishment not only retribution for offense but also maintains moral order and social value and promotes public welfare. Despite this theory is abandoned or modified after the WW2, the factors that make up this theory, such as Confucian Thought, collectivism, Buddhist thought, and the judiciary's view that punishment has the function of stabilizing the normative consciousness of the general populace, do not disappear in East Asian societies.
To conclude, by analyzing what supreme courts dealing with death Sentence and the sentencing standard for the capital punishment, this paper provides a more applicable way to indicate how the substance of the concepts introduced from the West, such as responsible, criminal liability, and retribution, are embodied in the death sentence and the sentencing standard of these Supreme Courts. Furthermore, I will outline the ethics of death penalty in East Asia.