|Abstract: || 近期刑事案件犯罪者係罹有精神疾病之情形時有所聞，此造成整體社會對於精神障礙者之恐慌逐步攀升，進而引發以應報為核心之刑罰民粹主義成為主流思想，重刑化蔚為刑事政策之導向。然而精神疾患被告本身兼有「患者」與「犯人」之雙重身份，令其如通常之人一般進入刑事訴訟程序並論罪科刑，被告除可能因精神疾病而不知其所犯何罪而對其不公外，自修復式正義之角度而言，亦無法使被告理解其對於被害人造成傷害之嚴重程度。受審能力作為刑事訴訟程序之基礎門檻，就精神疾患被告而言，實有其必要性。 我國刑事訴訟法第294條第1項規定：「被告心神喪失者，應於其回復以前停止審判。」是為受審能力之規定，其核心之宗旨在於保障被告之訴訟權。刑事訴訟程序以言詞辯論為其核心，雙方藉由交互詰問就己身之立場進行攻擊防禦，被告遭起訴後，若於刑事訴訟程序中，因精神疾病而無法理解經此程序獲有罪判決即須遭受刑罰，或不能與辯護人就訴訟策略為有效之溝通，則所進行之言詞辯論形同虛設，極可能嚴重侵害被告之權益。故審判程序能續行之前提，應立基於被告具有「理解訴訟程序意義」及「協助辯護人進行訴訟上攻防」之能力，如經認定無此等能力，則應停止刑事訴訟程序，直至被告恢復始得續行審判。 而就刑罰目的論以觀，訴訟程序之進行，除伸張公平正義外，對於被告實亦有教化之功能存在，藉由了解自己所犯何罪、於交互詰問中就案發經過再為釐清，始能更真切理解對於被害者所產生之痛苦，而令再犯之預防更為有效。另自被害者之角度而言，若欲追求血債血還之絕對應報，令被告具備受審能力，即意謂其精神狀態須回復至可得審判之程度，則被告於其後所進行之訴訟程序及對其所處以之刑罰，須以如常人之神識面對，而無法遁入瘋相逃避之，如此始能謂係真正之正義。故確保被告具有受審能力，實係有助於在精神疾患被告之處遇與被害者所欲彰顯之正義此二立場間取得衡平。 然觀諸我國對於受審能力之規定，雖於刑事訴訟法作概要性之揭露，惟並未就其判斷標準、鑑定方式以及受審能力恢復後應行之程序於法律上作出相應之規範，探討相關議題之文獻亦甚少。而相較於我國對於受審能力之界定尚屬朦朧，美國法對於受審能力此一概念已於美國聯邦制定法作出定義，條文內除揭示被告處於何種情形下即屬欠缺受審能力外，亦就受審能力產生疑義時得發動聽證會之主體為闡明。此外，美國法並藉由歷年之判決內容，逐步織就受審能力整體制度之清晰輪廓，殊值我國借鏡。 本文擬參酌美國法上關於受審能力之規定及具有代表性之判決，比較並融合我國法相應之概念和需求，以釐清未來建立制度性規範之方向，希冀能依此循序完善我國受審能力之相關架構。|
Recently, mentally-ill criminal offenders are reported from time to time, thus raising public panic towards mental illness and triggered retributive justice to become the mainstream conception in the society. Cruel and severe punishment is therefore leading the formation of criminal policy. However, defendants with mental illness concurrently hold both identities as “patient” and “criminal”; suppose they are brought into usual criminal procedure and imposed with charges and sentences, it could be injustice to them as they cannot understand what they committed had constituted criminal offenses due to mental disorder; on the other hand, if we look at it from the perspective of restorative justice, the penalty cannot make defendants to realize the severity of their actions on victims. Therefore, the competency to stand trial, being the basic requirement of the criminal procedure, is duly necessary for the defendants with mental illness. The requirement of competency to stand trial is stipulated under Paragraph 1, Article 294 of The Code of Criminal Procedure, that "If an accused is insane, the trial shall be suspended until he recovers," which the core spirit is to protect the defendants’ rights of instituting legal proceedings. The essence of criminal procedure encompasses oral argument process whereby the parties perform attacking and defending pursuant to their respective standing in cross-examination. If the defendant is not able to understand that he will be decided guilty through this process and the ensuing punishments, or is not able to effectively communicate with his attorney of his litigation strategy due to the mental illness after he was prosecuted, the procedure of oral argument performs practically no function and thus may seriously infringe the right of the defendant. Therefore, the litigation procedure shall proceed on the premise that the defendant has the ability to "understand the meaning of litigation procedure" and "assist the attorney in pursuing attacking and defending actions". Where the defendant has no such ability, the criminal procedure shall be suspended until he recovers. From the perspective of purpose for penalty imposition, in addition to uphold fairness and justice, the proceeding of litigation procedure also aims to educate the defendant. By realizing the crime the defendant himself had committed and clarifying the whole fact through cross examination, he may truly comprehend the pain the victim has suffered, which may be more effective in preventing recidivism. Moreover, from the perspective of the victim, if the victim intends to pursue absolute retributive justice, having the defendant with the competency to stand trial (i.e. his mental condition recovers to the condition that the people can be put on trial) means the defendant will face the litigation procedure and the penalty as normal people, rather than feeling nothing due to his mental illness. Justice will be served only to that end. Hence, ensuring the defendant is with the competency to stand trial is good for the balance between the condition of the mentally ill defendant in the procedure and the justice the victim intends to pursue. After reviewing all Taiwan laws and regulations, while The Code of Criminal Procedure provides skeleton structure of the competency to stand trial, there is no corresponding rules with respect to the determination criteria, method of forensic mental health assessment and the applicable procedure after competency to stand trial is recovered, and literatures covering related topics are also lacking. Contrary to the hollow of rules of our country in respect of competency to stand trial, the United States of America has set forth the definition in its statute, which not only describes the conditions of incompetency to stand trial, and also the rule for a subject to apply for hearing to determine competency when it is unclear. In addition, the case law over the years in the United States have gradually weaved out a clear structure for the determination of competency to stand trial, which can be served as a reference for the development of our country in this respect. This thesis proposes to take reference of the laws and regulations and milestone cases related to the competency to stand trial of the United States, compare and integrate them with the structure and needs of our laws and regulations so as to clarify the future direction in establishing systematic rules, in the hope of improving overall structure for competency to stand trial.