輔仁法學第71期

原住民族復權抗爭常陷入《Catch-22》式主體陷阱：若要成為國家法承認的權利主體，必須先將自身轉譯為可審查、可管理、可文件化的治理客體。本文結合後殖民法理與法意識研究，指出國家單向承認與授權，如何透過「殖民治理語法」自然化殖民情境，並形成主體認知禁錮。本文主張，逃脫之道不在於單一制度修補，而在於一場「法意識的文藝復興」：透過重讀法律、重組感知秩序、策略性依附與語言挪用，原住民族得以在既有規則縫隙中生成新的行動邏輯。當部落能夠以日常實踐、情動與幽默進一步接合部落章程、行政協商、訴訟策略、共管機制與日常規範實踐，迫使國家回應其自身法律體系無法容納的地方知識與關係倫理時，法律解殖便不只是抽象的規範理想，而是重新分配法律生產權力的實踐過程。本文提出「共製法」框架，說明法律不只是統治工具，更是在衝突、協商與制度縫隙中被重新發明的有機體，從而為原住民族法律解殖與主權再生提出更具實踐力的理論想像。

關鍵詞：原住民族、法意識、法律霸權、客體化、法律殖民、策略性依附、共製法、情動政治、法律再生
 

Why do Indigenous struggles for restoration and redress so often seem trapped in a Catch-22 dead end? This article reflects on one of the most paradoxical traps within the state legal system: “To become a legal subject endowed with rights, one must first force oneself into a state-recognizable form and be reduced to an object manageable by the state.” Through unilateral recognition and authorization, the state compels Indigenous peoples to confine their subjecthood within the cold grammar of colonial governance. In this subtle process, law becomes a form of cognitive confinement that naturalizes the colonial condition.
In the face of this seemingly inescapable structural wall, how might Indigenous peoples find a way out? This article argues that the path of escape does not lie in isolated institutional repair, but requires the initiation of a “renaissance of legal consciousness.” Bringing postcolonial jurisprudence into conversation with legal consciousness studies, the article addresses a gap in existing literature: the insufficient analysis of how legal consciousness is naturalized, internalized, and reproduced under colonial conditions. It further shows that the force of escape often depends on a subtle internal transformation of subjectivity. Through rereading law, reconfiguring the order of perception, and deploying “strategic dependence” and “linguistic appropriation,” Indigenous peoples are able to cultivate new logics of action within the fissures of existing rules.
When resistance is interwoven with everyday practice, abundant affect, and even ironic humor, the “renaissance of legal consciousness” transforms resistance into a form of “creative existence.” Ultimately, this article proposes a new framework of “co-producing legality”: law is not merely an instrument of domination, but an organic form continually reinvented through conflict and negotiation. Only in this way can we loosen the deadlock in which “becoming a subject requires prior objectification,” and open up a more vital theoretical imagination for the legal decolonization of Indigenous peoples.
 

刑事鑑定制度與刑事訴訟發現真實之目的息息相關，然刑事鑑定報告欲成為裁判依據，應以具備可靠性為前提，只是，在我國早期之實務運作下，對鑑定報告之可靠性審查明顯不足，甚至將書面鑑定報告一律視為傳聞例外，嚴重侵害被告之對質詰問權。為改善此缺失，司法院於2019年提出刑事訴訟法修正草案因應，該法案最終於2023年修正通過。雖本次修正在大體方向上皆值贊同，然在機關鑑定領域創設三種傳聞例外，則存在重大爭議。就此，本文借鏡美國法，以傳聞法則與對質詰問權之關連性切入觀察，分析後認為，由於鑑定領域目前尚難貫徹全面強制認證制度，且偵查機關所屬鑑定人員亦難克服無意識下所形成之各類偏見，故尚無法以相關鑑定是由具法定職掌或經認證之鑑定機關所為，即證立成為傳聞例外之妥適性。因此，為有效保障被告之對質詰問權，本文建議採用限縮機關鑑定之傳聞例外適用時機，或全面刪除機關鑑定之傳聞例外兩種方式因應，此外，因採用後者可能相當程度影響鑑定能量，故應再採用限縮對質詰問權之行使對象，以及積極提升鑑定效能之配套措施。

關鍵詞：機關鑑定、傳聞例外、對質詰問權、可靠性評估、守門審查

The criminal forensic system is intrinsically intertwined with the fact-finding function of criminal proceedings. Given that expert evidence often plays a decisive role in judicial determinations, a forensic expert report should serve as a basis for adjudication only when its reliability is sufficiently substantiated. In Taiwan’s prior judicial practice, however, courts conducted only perfunctory scrutiny of the reliability of expert reports. Written expert opinions were frequently admitted under hearsay exceptions without requiring the expert’s physical appearance in court. Such practices effectively allowed written reports to substitute for in-court testimony, thereby seriously impairing the defendant’s constitutional rights to confrontation and cross-examination and weakening the adversarial testing that is central to a fair trial. To remedy these systemic deficiencies, the Judicial Yuan proposed amendments to the Code of Criminal Procedure in 2019, which were ultimately enacted in 2023. Although the overall direction of the reform—shifting toward a more rigorous examination of expert evidence—is laudable, the amendment created three specific hearsay exceptions concerning institutional expert examinations, triggering substantial controversy within the legal community. Drawing on U.S. evidentiary doctrines and examining the complex interplay between the hearsay rule and the right to confrontation, this article argues that establishing broad, categorical hearsay exceptions for institutional expert reports is fundamentally problematic. The core of the issue lies in the unwarranted presumption of reliability. Given that a comprehensive mandatory accreditation regime has not yet been fully implemented in the forensic domain, and that experts affiliated with investigative authorities may remain susceptible to various forms of unconscious bias, the mere fact that an examination is conducted by an institution with statutory duties does not, per se, justify exempting the resulting written report from the hearsay rule. Such an approach risks permitting reliability to be presumed solely on the basis of institutional status, rather than being tested through rigorous judicial scrutiny. Accordingly, to effectively safeguard the defendant’s right to confrontation, this article proposes either narrowing the applicability of hearsay exceptions for institutional expert reports or, preferably, abolishing such exceptions altogether. Considering that the latter approach may substantially strain forensic capacity, this article further suggests complementary measures. These include limiting the scope of personnel required for in-court appearance and proactively enhancing forensic efficiency, so as to balance procedural fairness with the practical operational needs of institutional forensic examinations.

定型化契約之應記載及不得記載事項，為具有私法上效力之法規命令，除具有預先審查業界使用之定型化契約條款是否顯失公平外，亦具有規範當事人契約權利義務關係之效力。消費性定型化契約雖在應記載及不得記載事項新規定生效前即已成立並生效，惟若新規定之構成要件事實於其生效後始完全實現者，當然有新規定之適用（不真正溯及既往）。此外，若按新規定生效以前之法律狀態可認為有應填補之規範漏洞存在時，亦得將新規定作為民法第1條之「法理」而援用於其生效前之契約關係，以填補其規範漏洞。
另一方面，就新規定生效前之契約，仍可回歸適用消保法第12條之一般規定。此時，法院亦得審酌新規定之規範意旨，審查其生效前之定型化契約條款效力。此外，契約終止係向將來消滅契約之給付義務，當事人就終止前之部分仍應依契約履行其給付義務，故企業經營者並無依折扣前之原價計算終止前消費者對待給付金額之正當理由。更遑論消費者若有疾病、傷害、懷孕、兵役或調職等不可歸責之重大事由時，除有權立即終止契約外（繼續性契約重大事由終止權），企業經營者亦無權主張違約責任或任何補償。定型化契約條款約定以折扣前之原價為終止退費之計算基礎，對消費者當然顯失公平而無效。

關鍵詞：定型化契約、應記載及不得記載事項、健身中心契約、健身教練契約、不真正溯及既往、新法規之先行效力、法理、繼續性契約因重大事由而終止
 

The mandatory and prohibitory provisions of standard contracts, within the meaning of Article 17 of the Consumer Protection Act, are administrative regulations with private-law effects. These not only serve the purpose of ex ante review as to whether the standard contract terms used in specific industries are unfair, but also have the effect of regulating the contractual rights and obligations between the parties. Although a standard form consumer contract may have been formed and taken effect prior to the entry into force of the new regulations (regarding mandatory and prohibitory provisions), if the factual prerequisites of the new regulations are fully realized only after their entry into force, the new regulations shall naturally apply (pseudo-retroactivity). Furthermore, if it can be established that a regulatory gap existed under the previous legal regime that needed to be filled, the new regulations may also be applied to contractual relationships formed before their entry into force, as “legal principles” (jurisprudence) pursuant to Article 1 of the Civil Code, in order to fill the said gap.
On the other hand, for contracts entered into before the new regulations took effect, the general provision of Article 12 of the Consumer Protection Act may still apply. In this context, the court may also take into account the regulatory intent underpinning the new regulations to examine the validity of the terms in existing standard contracts. Furthermore, since the termination of a contract only extinguishes contractual obligations prospectively, the parties must still fulfill their performance obligations accrued prior to termination. Therefore, there is no justified reason for the trader to calculate the consumer’s counter-performance prior to termination based on the original, undiscounted price. Not to mention that if consumers terminate the contract for compelling reasons unattributable to them—such as illness, injury, pregnancy, military service, or a job transfer—they should not only have the right to terminate the contract immediately (the right to terminate a continuing contract for compelling reasons), but the trader also has no right to claim for breach of contract or any compensation. Standard contract terms stipulating that the original, undiscounted price shall serve as the basis for calculating refunds upon termination are clearly unfair to consumers and therefore invalid.