台灣法律文化中的日本因素：以司法層面為例

Abstract

台灣於十九世紀末，改由日本依據一套來自近代西方、對絕大多數台灣住民而言，屬「異制」的國家法律，重新形塑當時台灣人的法律生活，並於日治後再透過文化傳遞而影響當今台灣法律文化，本文稱此為台灣法律文化中的「日本因素」。藉由當時報紙及法院檔案等，可知從日治之初，某些台灣人已懂得運用包括辯護士制度在內的新式法院，爭取民、刑事訴訟上的利益。且某些與法院制度有關的詞彙，已成為台灣人日常語言的一部分。約一九二○年代之後，台灣人辯護士的出現，使台灣人更易於接近法院。不過，日治下一般台灣人，對於近代型法院的親近程度，也不宜過度誇張，仍有一些人或無從知悉，或無力使用之。戰後，國民黨所帶入的中華民國法制和法學，與戰前日本非常相近，且有不少學生赴日習法而繼續引進日本法學，使得日本因素仍鮮活地存在於戰後台灣法律文化中，此可作為今後台、日法制及法學相互對等交流的基礎。

Japan introduced a modern-style legal system into Taiwan in the late nineteenth century, and its legacy has continued to influence post-war Taiwan. This is referred to as the “Japanese element” in Taiwan’s legal culture by the author. According to newspapers and archival sources from the period of Japanese rule, some Taiwanese, including practicing lawyers, employed the court system to protect their interests in lawsuits even in the early days of Japanese rule. Some specific terms relating to the court became a part of the daily language in Taiwan. Since the 1920s, the emergence of Taiwanese attorneys benefited Taiwanese in gaining access to the court. However, some Taiwanese were not accustomed to the idea of modern-style courts or did not find it affordable to use the courts during Japanese rule. In post-war Taiwan, the Japanese element has survived due to the fact that the ROC legal system and jurisdiction were similar to those in the pre-war Japanese empire, of which Taiwan was a part, and that many Taiwanese students went to Japan for study and later brought back Japanese laws and jurisdiction to Taiwan. Accordingly, the Japanese element continues to exist in Taiwan and has become a firm foundation by means of which Taiwanese and Japanese are able to freely exchange their legal experiences with each other.