修復式司法促進者在刑事醫療案件偵查前階段的運用及其可能性【本期企劃】 試閱
Restorative Facilitator in Pre-Investigation Stage of Criminal Procedure in Medical Dispute
本文介紹臺灣刑事訴訟之醫療案件現況，以家事事件的類似性為例做比較，接著探討修復式司法沿革、定義及理念，並比較其中的促進者與醫療促進溝通關懷員之理念及訓練課程，最後結論為兩者都屬於廣義訴訟外解決機制，也都是廣義調解之一環，與筆者所提倡的關懷式調解—醫療爭議從預防到修復之觀點互相吻合而可呼應，建議將促進者的功能與利用，提早到刑事告發偵查前階段，可以發揮更大功能，促進醫、病、司法三贏的局面。
Restorative justice was first introduced for juvenile criminal case for the good of society as whole. Where both sides seek inner peace after criminal event through facilitator’s impartial help to communicate with each other to find an acceptable way of both sides to a restorative peaceful state. It is a form of mediation in nature, hence alternative dispute resolution (ADR), and is progressed from civil cases to criminal cases in about 1970 in USA and was called victim-offender mediation (VOM). The facilitator’s role and training are basic same as mediator emphasized in facilitative style mediation. The nature of different kinds of dispute decide what kind of mediation is better for that type of dispute. Where huge emotional involvement and / or preservation of future close relationship is key concerned same in family dispute and sometime even severer in medical dispute. The legal system of Taiwan is particularly prone to lead many medical dispute cases go through criminal procedure, hence big burden of prosecutor. In the end, those cases were dismissed by prosecutor, so notsatisfied for patient nor family, with frighten and frustration for physician. The facilitators can be of useful in advance stage thus pre-investigation stage, because their skill can help both patient and physician sides to solve emotional problem and have good and effective communication. As experience in other country showed good and effective communication resole dispute so that no prosecutor investigation or trail will be necessary in many cases.
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