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Teacher Hung, Wen-Ling was interviewed by The Storm Media
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2023/1/15
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Hung, Wen-Ling and HSU,CHENG-YIN 's point of view: an epoch-making milestone in the protection of the rights and interests of crime victims
2023-01-15 07:00
Comprehensive report of local center
Mencius said, "Today there are people who are kind-hearted and benevolent, but the people are not treated by it, and cannot be governed by the law of later generations. It is not the way of the former king. Therefore, it is said that good deeds are not enough to govern, and good deeds cannot be governed by law."
After more than one year's revision of the law, after consultations between the Party and the League of the Legislative Yuan, the Ministry of Justice, the Judicial Yuan and the legislators, who had worked very hard, finally passed a human rights bill on the protection of the rights and interests of crime victims on January 7, 2023. Regardless of whether the amendment can fully meet the expectations of the victims and their families, the most important thing is how to truly and effectively implement it. This law can be called the "Basic Law" for the protection of the rights and interests of crime victims in China.
1. landmark protection of the rights and interests of crime victims
This Law on Possession of Rights has revised the Crime Victim Protection Act enacted in 1998 for six times, and its provisions have been constructed from 36 to 103 articles. It has been comprehensively upgraded and revised to "Version 7.0". It is worth affirming that:
（1） Legal name: The Law on the Crime Victim Protection Act is easily the Law on the Protection of the Rights and Interests of Crime Victims. The Ministry of Justice adopted the statements of civil society organizations such as the Criminal Protection Alliance and admitted the concept of rights-based crime victims.
（2） Protection of rights and interests: establish administrative assistance, protection services, criminal victim protection orders, restorative justice, compensation for victims of crime and protection institutions of government agencies, and the protection system of rights and interests is relatively complete.
But the Japanese proverb goes, "God is hidden in details" (God's details). Is there any mystery in the 7.0 version of the Right to Be Law that we can't see or hear? The story is outside the city, the thick fog can't disperse, and the dialogue can't be seen for thousands of miles?
2. Protection of the rights and interests of crime victims
（1） Protection organization:
In Article 75 of the Protection of the Rights and Interests of Crime Victims, in order to help rebuild the lives of the victims of crime and their families, the competent authorities should establish a protection agency, which is the core part of the implementation of the victims' rights and interests. Its funds (Article 76), the staff and operation of the board of directors (Article 79, 80, 81) and the staff of the chief executive (Article 85)... These important provisions need the public to continue to pay attention to the follow-up implementation issues.
First of all, the commentator said that in the past, criminal protection organizations were attached to the Ministry of Justice and local procuratorial offices, resulting in the appearance of their people's skin and bones. They did not have the enthusiasm of civil society, but infected the atmosphere of bureaucrat - sauce pot culture, affecting their service efficiency, efficiency and efficiency; Moreover, if the list of candidates for the chairman or director is still an official candidate, it will be executed according to the administrative procedures of the government, and all the courtesies will be as formal as the ceremony, and will eventually become a rubber stamp. The rules of the game determine the result of the game. Finally, the chief executive, the most important core figure of an organization, must be selected from professionals with enthusiasm, compassion, ambition and experience in social services, rather than officially appointed personnel.
In other words, through the adoption of this amendment, whether the autonomy and independence of the protection organization itself can be truly implemented to ensure that the rights and interests of the victims of crime are guaranteed, actively advocate the human rights of the victims of crime, and increase the budget and organizational manpower of the protection organization to provide services that are more close to the real needs of the victims of crime and their families, which is worthy of continuous observation and innovation by the Chinese people.
（2） Crime victim protection order:
Secondly, the "order to protect the victims of crime" system is added in Chapter 3 of the Protection of the Rights and Interests of Crime Victims. It is explicitly based on the detention alternative punishment prescribed in Article 116-2 of the Protection of the Rights and Interests of Crime Victims. For the family members of the victims who died, seriously injured or suffered from the infringement of their sexual autonomy due to intentional criminal acts, the judge may, at the request of the prosecutor or on his/her own authority, consider the balance between the protection of human rights and the maintenance of public interests, and, if necessary, order the defendant to comply with relevant matters, In order to ensure the personal and psychological safety of the victims of crime or their families, this should be highly affirmed.
The so-called related matters, such as the prohibition of endangering, intimidating, harassing, contacting, tracking, and other matters on the body or property of the crime victim or his family members, and even the crime of impairing sexual privacy and false sexual images (theoretically called digital sexual violence), and the prohibition of reproduction, distribution, broadcasting, delivery, public display, viewing the victim's sexual images in other ways, and ordering the submission or delivery of the victim's sexual images, They even ordered the removal or application to the Internet platform provider, Internet application service provider or Internet access service provider to delete the uploaded sexual images of victims to protect the victims of crime.
It is worth considering here that the court can issue it on its own or at the request of the prosecutor, but the victim of the crime has no right to apply to the court. If the prosecutor does not apply or the court does not issue it according to its authority, it seems that we still regard the criminal victim as the object of procedure, whether the guarantee of the right to action of the basic rights set forth in the Constitution is sufficient, whether there is an immediate and effective right remedy without loopholes, whether there is any violation of the principle of due process of law, the state's obligation to protect the basic rights, human dignity, and even the principle of due process of law, etc, It is not the subject of the procedure. At most, Meiqi is a participant in the proceedings. It does not recognize the subject right of the criminal victim. The judge and the prosecutor have the obligation of objectivity. This is the Litigation Dilemma of the criminal victim.
As a result, Taiwan's traditional legal logic is "only to accompany you here, after all, there are some things that can't be done" (the right to petition). Therefore, the practical skills can only advise the victims of crime to make a good statement of their opinions, opinions, and opinions (because it is very important to state their opinions three times) when they are interrogated by the police or the prosecutor, which should be written in the transcript, whether it is to request the prosecutor to apply or let the judge issue them according to his authority, Let them see the transcript, and then issue a crime victim protection order. Crime victims should be self-reliant!
4、 Rights and interests of crime victims - continue to sail!
The comments come from the expectation that only a country that can protect the rights and interests of crime victims can be called a country under the rule of law. Article 13 of the Japanese Constitution has the so-called right to pursue happiness. Dear friends, the happy apple is the people's, and we can all be safe if we return it to the people. Fairness and justice never fall from the sky. The victims of crime have to fight for their rights and interests with their confidence and courage (Der Kampf ums Recht).
Before discovering the New World, Columbus said a famous saying: "Today we continue to sail in the southwest and west." Now, the protection of the rights and interests of crime victims continues to sail in the southwest and west! (Related report: Yang Gangru's point of view: The prosecution's abuse of the people - comments on the money laundering case of the nine-year-old defendant | more articles)
*The authors, Hung, Wen-Ling is an assistant professor of he Department of Criminal Justice of Ming Chuan University, and HSU,CHENG-YIN is a practicing lawyer.
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