我先廢話幾句：廖老師的版真是「地靈人傑」、「人文薈萃」；常可以看到很多精采而知性的留言，跟許多國內報紙文章的水準不分軒輊，甚至猶有過之，看了還真可以長見識！
這篇留言的原址請參見：http://www.facebook.com/home.php?ref=home#!/bruce.y.liao?v=wall&story_fbid=425755073652
---- 以下是正文 ----
假如承審的法官「事實上」就是會有「有罪推定」的心證（如同黃教授所指謫的我國法官那般）【fn 1】，那麼再討論「一審判了有罪是否就能推翻『無罪』的這個推定」，其實也沒多大意義，因為法官（不管一二審）早就推定被告「有罪」了，再怎麼告訴法官要「無罪推定呦」，老實講也沒用阿。
所以我看其實黃教授也不是真的要批評那個法官的昏頭文章【fn 2】，實際上只是把那篇文章作個引子，要批的是（他所認為的）我國法官普遍「有罪推定」的心態。真要講起來，英美法陪審系統中的法官，當然啦，普遍深知人權重要性及司法權作為保障人民對抗國家機器的功能，因此的確會比我國法官來得更落實「無罪推定」原則，這點倒是沒什麼疑問的。但美帝法官心態上會「有罪推定」或是小白常說的pro-prosecution親檢方的，其實也不在少數。許多法官在當法官前根本就是D.A.，忌惡如仇，被告或辯護律師開了一句話，他就知道被告要搞什麼把戲、耍什麼花樣，所以在證據容許性問題或證人詰問過程中，甚至在jury instruction中，每每傾向容許檢察官的主張或耍小花樣，硬是希望陪審團判被告有罪，這說實在也不少見。我閱讀過幾本美帝教授指導訴訟詰辯學、訴訟策略的書籍，第一課千篇一律，都是提醒檢察官及辯護律師必須「徹底瞭解研究你的法官」，理由即在於此。
就我國的情形而言，現實的問題是，在「非人民陪審」、「由法官身負有無罪認定之重任及撰擬詳盡理由裁判書類」、「卷證併送」、及「二審全面事實法律覆審制」這些制度下，我們要怎麼期待一個法官在審判過程中毫無預斷、不會「有罪推定」？老實講，在開庭之前，每個法官為了確保訴訟的有效進行（不要浪費時間），為了能寫出不會被上級法院撤銷的判決書（不要寫到一半才發現：慘，有關鍵證據還沒調查、有關鍵問題還沒問清楚），因此都碼先把檢察官所提對被告不利的卷證翻得滾瓜爛熟，連關鍵證物在哪、明星證人是誰、及要問什麼問題才要切中要點，早就了然於胸。這些都是訴訟過程中很實際的問題，是訴訟實務家在這樣的制度下必須每天面對的，決不是幾句：「ㄟ，法官應該無罪推定阿，應該要作一個客觀中立的聽訟者就好阿，怎麼還自己問證人問那麼多問題，怎麼還自己調查那麼多證據阿，有偏頗有偏頗喔」的幾句批評就可以解決的。我以為黃教授僅批評我國法官普遍有罪推定的心態、卻沒提及任何因制度使然的背景問題，這僅不過是覆述了一遍現今我國輿論普遍的想法，不能算是很有深度的指謫。
要怎麼教育法官呢？好吧，就算法官普遍都能深植著「司法身為監督檢察官起訴及證據取得的角色」，就算法官都能普遍接受認同「證據排除就是要嚇阻檢警不法侵害人民權利」的這種觀念，但在訴訟實際過程中，法官為了清楚地認定事實及有無罪，為了統合正反方各種證據且撰擬理由詳盡的判決書，為了不讓上級審有縫可插隨便把你撤銷，自然而然會依職權調查證據，自然而然也會把證人的補充詰問當成常態，更不用說在聽審前詳細閱讀卷證而產生對被告不利心證的預斷（其實說起來對檢察官不利心證的也很多啦），這些所謂「有罪預斷」的特徵，我認為都是制度使然的現實問題。黃教授師法扶桑國的平野龍一大教授、而倭國制度與我國似乎也相去不遠（大差異就是日本係「起訴狀一本」），我也曾經問過一位來自日本的法官同學：日本法官是否因「起訴狀一本」就真的不會有罪預斷？他只給我一句回答：日本檢察官起訴的定罪率是百分之九十九。啊，不言可喻啊。
最後，黃教授文中所提「但實務上，卻由被告自己證明；同時，我國被告證明自己無罪，則必須證明到關於被告無罪，『不容有合理性之懷疑存在之餘地』才行，否則，被告必被判有罪。」等語，很明顯是來自於一則早於N年前就被廢止的最高法院的判例。我記得早在十年多前（可能更早），最高法院的判例及刑庭決議早就屢次三令五申，假如檢察官沒有證據證明被告有罪至「超越合理懷疑」的程度，即應諭知被告無罪。而且二審法院每年因為認為一審認定被告有罪的證據不足而撤銷改判無罪者，真是不計其數，因而連帶影響近年來一審法院認定有罪事證越趨嚴謹。黃教授這部分的指謫假如不是道聽塗說或僅憑臆測，實在不知基礎何在。
---- 結束 ----
fn 1 學者黃東熊的原文請參見： http://news.chinatimes.com/forum/0,5252,11051401x112010052500431,00.html
fn 2 張升星，《無罪推定 被告擋箭牌？》(23 May 2010，聯合報)，原文請見：http://udn.com/NEWS/OPINION/X1/5617614.shtml
2010年5月26日 星期三
2010年5月24日 星期一
專業主義的滲透 --- 聖工的分殊化
現代社會的特徵就是專業化、分殊化(differentiation)；各個領域都有專家、都有一套自己的行為模式。傳統意義底下的 "專業"，像是醫師、律師、工程師等等，不斷地被擴充，以至於包括運動、養小孩、人際關係等等，也都會有"專家"來提供專業的建議，告訴你我什麼事情用什麼樣的方式來做會比較有效、比較理想。
這種專業掛帥的氣氛，似乎在教會裡頭也愈來愈濃厚了。聖工，也就是教會的事工，也正在經歷這種專業的革命；也就是，教會內的各項工作，例如講道、聖樂、行政、牧養等等，也都可以透過更專業的方式來進行，以達到更佳的果效(更高的效率)。教牧諮商，我認為就是這個分殊化的最佳例證。
教牧諮商，簡單來說，是一種將傳統的信仰訓練與現代心理學理論和方法結合，以解決信徒心理和靈性問題的牧養技巧；透過專業的諮商方法以及其他傳統的信仰輔助方式如禱告、讀經等，來幫助信徒改善生活和信仰。從這邊來看，可以發覺心理諮商的專業在當中所扮演的關鍵角色。這就是一種專業的滲透；教牧諮商的蓬勃發展，與當代心理學的崛起有密切不可分的關係。
諸位千萬不要對這種變化、或"專業主義滲透"等字眼感到不自在。其實聖工一直以來都有很強的專業主義色彩的，不知各位有無查覺？聖經的詮解和神學的研究，一直以來都是非常專業的學問。神學、法學、醫學是中世紀三大古典學術；很久以來，神學就像今日的醫學法學等顯學，是只有最出色卓越的青年才俊才能夠學習的。另外，聖樂不也是一樣高度專業？巴赫難道是泛泛之輩嗎？故而，一旦能了解其實聖工向來就很濃厚的專業和精英傳統，則面對今天教會的事工再進一步的專業化，也不會再感到是什麼空前而令人不適的創舉。
只是我們要意會到的是，專業主義的擴大，就會讓各種事務的分工愈來愈無可避免。教牧諮商的發展，也意謂著"牧養方法"更加的專業，而進行這項工作的人也愈來愈不能隨興、隨便了。例如，在諮商的專業要求下，就會告訴你哪些關懷他人的方式是有效的，而哪些有是沒用或甚至是有負面效果的。就像聖經的詮釋也會有妥當和歪曲之分是一樣的。
只不過，當聖經的詮釋在今日愈來愈鬆懈和隨意，教牧諮商對牧養方式的宰制卻不斷增強；專業主義在兩邊的一消一長，令人玩味。此外，教牧諮商或許真能帶來不同凡響的效果，但也讓有心服事的信徒面對更高的進入門檻；教會在訓練上勢必也須投入更多的資源，愈來愈多相關的課程和訓練都在教會或團契中出現；這些都是專業主義的滲透，教會聖工分殊化所帶來的種種改變。
這種專業掛帥的氣氛，似乎在教會裡頭也愈來愈濃厚了。聖工，也就是教會的事工，也正在經歷這種專業的革命；也就是，教會內的各項工作，例如講道、聖樂、行政、牧養等等，也都可以透過更專業的方式來進行，以達到更佳的果效(更高的效率)。教牧諮商，我認為就是這個分殊化的最佳例證。
教牧諮商，簡單來說，是一種將傳統的信仰訓練與現代心理學理論和方法結合，以解決信徒心理和靈性問題的牧養技巧；透過專業的諮商方法以及其他傳統的信仰輔助方式如禱告、讀經等，來幫助信徒改善生活和信仰。從這邊來看，可以發覺心理諮商的專業在當中所扮演的關鍵角色。這就是一種專業的滲透；教牧諮商的蓬勃發展，與當代心理學的崛起有密切不可分的關係。
諸位千萬不要對這種變化、或"專業主義滲透"等字眼感到不自在。其實聖工一直以來都有很強的專業主義色彩的，不知各位有無查覺？聖經的詮解和神學的研究，一直以來都是非常專業的學問。神學、法學、醫學是中世紀三大古典學術；很久以來，神學就像今日的醫學法學等顯學，是只有最出色卓越的青年才俊才能夠學習的。另外，聖樂不也是一樣高度專業？巴赫難道是泛泛之輩嗎？故而，一旦能了解其實聖工向來就很濃厚的專業和精英傳統，則面對今天教會的事工再進一步的專業化，也不會再感到是什麼空前而令人不適的創舉。
只是我們要意會到的是，專業主義的擴大，就會讓各種事務的分工愈來愈無可避免。教牧諮商的發展，也意謂著"牧養方法"更加的專業，而進行這項工作的人也愈來愈不能隨興、隨便了。例如，在諮商的專業要求下，就會告訴你哪些關懷他人的方式是有效的，而哪些有是沒用或甚至是有負面效果的。就像聖經的詮釋也會有妥當和歪曲之分是一樣的。
只不過，當聖經的詮釋在今日愈來愈鬆懈和隨意，教牧諮商對牧養方式的宰制卻不斷增強；專業主義在兩邊的一消一長，令人玩味。此外，教牧諮商或許真能帶來不同凡響的效果，但也讓有心服事的信徒面對更高的進入門檻；教會在訓練上勢必也須投入更多的資源，愈來愈多相關的課程和訓練都在教會或團契中出現；這些都是專業主義的滲透，教會聖工分殊化所帶來的種種改變。
2010年5月20日 星期四
英文作文 --- 宜芬在老人安養院實習的心得
We all notice the time our children cuts his first teeth, but forget the time our fathers lose his last teeth. To satisfy our needs for more time to enjoy new experiences, science and technology progress have been prolonging human life span in these centuries, enabling us to live longer and healthier than our ancestor did.
However, becoming old seems too horrible to face for young people like us, since the elder look very different from us, such as their loose skin, tardy movement, bad memory, and untidiness. Moreover, the outside world is in fact largely designed for the young people, so old people tend to be more unsuitable to the living in such environment. People thus often think that the elder would be so fragile that they should stay at home to avoid potential risk. When becoming that old, who will care about my happiness?
To cope with these problems, a well-equipped nursing home or senior home is the ideal place to the elder, for not only their safety but the same age peers for them. Zhao-Ru Senior Home is one of such institution. Located at a community that stands on a hill behind Chengchi University, a place away from the city center which is serene and tranquil, Zhao-Ru is a home for many elder people who suffer Dementia, usually known as Alzheimer's disease.
On a chilly day I first visited and stood outside Zhao-Ru. Although I very much want to become a social worker, I still felt a little uncomfortable about getting along with the elder. I was afraid that I may not understand them when they are talking to me or I may do something silly to annoy them. I kept smiling to cover my anxiety when walking in; I knew my face looked unnatural. Yet, I comforted myself that the old are not aliens, they are just like children, thirsting for patience and love.
My first job was taking pictures for every resident. I took an elevator to the third floor. As the door opened, I breathed deeply and stepped out with smile, seeing the elder sitting at their chairs side by side with the only voice from a television. Many of them soon noticed and stared at me with smile. Grasping and skimming a name list, I found the first person, a grandmother, who sat and napped beside a heating machine with her hands crossed. I tenderly tapped her on the shoulder, waked her up, and asked if I could take a picture of her. She said she was too old and ugly to be taken pictures of. This response made me quite uncertain about what to do at first, and then I squatted down, held her hands, and praised her beauty. I found her hands were flimsy, smooth and cold. Fortunately, she grinned her appreciation of my help, and then she asked me to comb her hair and button her buttons. Finally I managed to take her picture.
I took their pictures one by one. Most of them were willing to be my models. They chatted with me while being photographed. Although I could not totally understand what they meant and often just nod my head in response, they looked very happy to have a person listening to them. At that time, it seemed quite easy for me to get along with the elder. They were all affable and pleasant old people. I walked confidently toward my next target, a grandfather in a fluffy green coat.
“Could I take a picture of you?”
“No.”
“Please, let me take a picture.”
“No.”
“But everyone has his own photo.”
I tried in a different way to invite him but it did not work. His eyes stared at the camera with his hands waving.
I made my whole effort but could not persuade him to be photographed. “Other grandpas and grandmas did it the same. Why doesn’t he do so as well?” I murmured. After a short period of mum, a nurse passed by, seeing what just happened, and told me: “He was a diplomat. He is used to protecting his privacy from being offended. If he doesn’t want to do that, don’t push him. ”
I was astonished while knowing his career, not because he was once a diplomat but because he worked as young people do. Yet soon I found it quite weird of me to be startled by learning about the fact that an old person could work normally and respectably in the past. Naturally, everyone works. Nonetheless, when facing these Alzheimer patients, I saw them anything but wise, intelligent or educated. To be blunt, my primary impression about them all concerned the negative side they show, such as weakness and poorness.
Suddenly I realized that we usually fail to show the due respect toward our senior friends in the society. People coming to the last stage of lives are often crudely regarded and classified as a single category named “the old” by the young only because of their similar appearance. They might be either sick or weak; they might sometimes lack full sanity, but they are still distinct individuals, whose uniqueness differentiates them from each other. Therefore, I think I should treat them like my friends.
After altering my view on the elder, I discovered that Grandpa Lian likes patting me on my back to express his friendliness; that Grandpa Chou can speak English frequently for being an interpreter all his life; that Grandpa Yu studied at Chengchi University while it was located at mainland China; that Grandma Kou always asked my name when seeing me, and that Grandma Xia always sings the song, Ode to the Republic of China, at the KALAOKE time every Friday. I also felt genial and warm from Grandma Ho’s hands, even though they were flimsy, smooth and cold. In addition, I found a secret that Grandpa Lo, who was a diplomat and dislikes being taken photograph, likes stealthily taking candy because he has diabetes.
With these experiences, I have known them better. They are neither aliens nor children; instead, they are my friends. Even though they lose their last teeth, they are still friends of mine.
However, becoming old seems too horrible to face for young people like us, since the elder look very different from us, such as their loose skin, tardy movement, bad memory, and untidiness. Moreover, the outside world is in fact largely designed for the young people, so old people tend to be more unsuitable to the living in such environment. People thus often think that the elder would be so fragile that they should stay at home to avoid potential risk. When becoming that old, who will care about my happiness?
To cope with these problems, a well-equipped nursing home or senior home is the ideal place to the elder, for not only their safety but the same age peers for them. Zhao-Ru Senior Home is one of such institution. Located at a community that stands on a hill behind Chengchi University, a place away from the city center which is serene and tranquil, Zhao-Ru is a home for many elder people who suffer Dementia, usually known as Alzheimer's disease.
On a chilly day I first visited and stood outside Zhao-Ru. Although I very much want to become a social worker, I still felt a little uncomfortable about getting along with the elder. I was afraid that I may not understand them when they are talking to me or I may do something silly to annoy them. I kept smiling to cover my anxiety when walking in; I knew my face looked unnatural. Yet, I comforted myself that the old are not aliens, they are just like children, thirsting for patience and love.
My first job was taking pictures for every resident. I took an elevator to the third floor. As the door opened, I breathed deeply and stepped out with smile, seeing the elder sitting at their chairs side by side with the only voice from a television. Many of them soon noticed and stared at me with smile. Grasping and skimming a name list, I found the first person, a grandmother, who sat and napped beside a heating machine with her hands crossed. I tenderly tapped her on the shoulder, waked her up, and asked if I could take a picture of her. She said she was too old and ugly to be taken pictures of. This response made me quite uncertain about what to do at first, and then I squatted down, held her hands, and praised her beauty. I found her hands were flimsy, smooth and cold. Fortunately, she grinned her appreciation of my help, and then she asked me to comb her hair and button her buttons. Finally I managed to take her picture.
I took their pictures one by one. Most of them were willing to be my models. They chatted with me while being photographed. Although I could not totally understand what they meant and often just nod my head in response, they looked very happy to have a person listening to them. At that time, it seemed quite easy for me to get along with the elder. They were all affable and pleasant old people. I walked confidently toward my next target, a grandfather in a fluffy green coat.
“Could I take a picture of you?”
“No.”
“Please, let me take a picture.”
“No.”
“But everyone has his own photo.”
I tried in a different way to invite him but it did not work. His eyes stared at the camera with his hands waving.
I made my whole effort but could not persuade him to be photographed. “Other grandpas and grandmas did it the same. Why doesn’t he do so as well?” I murmured. After a short period of mum, a nurse passed by, seeing what just happened, and told me: “He was a diplomat. He is used to protecting his privacy from being offended. If he doesn’t want to do that, don’t push him. ”
I was astonished while knowing his career, not because he was once a diplomat but because he worked as young people do. Yet soon I found it quite weird of me to be startled by learning about the fact that an old person could work normally and respectably in the past. Naturally, everyone works. Nonetheless, when facing these Alzheimer patients, I saw them anything but wise, intelligent or educated. To be blunt, my primary impression about them all concerned the negative side they show, such as weakness and poorness.
Suddenly I realized that we usually fail to show the due respect toward our senior friends in the society. People coming to the last stage of lives are often crudely regarded and classified as a single category named “the old” by the young only because of their similar appearance. They might be either sick or weak; they might sometimes lack full sanity, but they are still distinct individuals, whose uniqueness differentiates them from each other. Therefore, I think I should treat them like my friends.
After altering my view on the elder, I discovered that Grandpa Lian likes patting me on my back to express his friendliness; that Grandpa Chou can speak English frequently for being an interpreter all his life; that Grandpa Yu studied at Chengchi University while it was located at mainland China; that Grandma Kou always asked my name when seeing me, and that Grandma Xia always sings the song, Ode to the Republic of China, at the KALAOKE time every Friday. I also felt genial and warm from Grandma Ho’s hands, even though they were flimsy, smooth and cold. In addition, I found a secret that Grandpa Lo, who was a diplomat and dislikes being taken photograph, likes stealthily taking candy because he has diabetes.
With these experiences, I have known them better. They are neither aliens nor children; instead, they are my friends. Even though they lose their last teeth, they are still friends of mine.
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