● 中文摘要：

　　1998年立法院三讀通過家庭暴力防治法，以保護令制度作為政策核心，使台灣成為亞洲第一個具備保護令系統的國家。然而，保護令制度之落實及其成效之發揮，必須仰賴國家公權力對於違反保護令者之強制性處分，其中又以「違反保護令罪」(crime of violation against protection order)此一刑事政策之配合實施最具有宣示性及嚇阻力。從而，本研究希望由違反保護令罪之裁判分析，探討及評估我國家庭暴力防治政策之執行實況。本研究採取質性研究中的檔案分析法(Archival Analysis)，透過司法院及法源資料庫之裁判搜尋系統，將各法院就違反保護令罪之判決，有系統地整理、研讀，並發展為被告家庭、行政系統、司法系統等三個面向指標進行分析。本研究也參考司法院所公布關於保護令之相關司法統計，與違反保護令罪之裁判搜尋及分析結果進行比對，讓保護令執行及落實之整體趨勢更加明確。
本研究由違反保護令罪的裁判分析研究發現：一、在整體分析發現，全國各地方法院受理聲請民事保護令案件及核發民事保護令的件數有每年上升的趨勢，.聲請民事保護令的人平均有6成以上的比例會獲得法院核發保護令，而核發保護令案件不到1成的比例會有違反保護令罪的情形，而各地方法院核發各款項件數最多的為禁止實施家庭暴力行為。二、在家庭面向發現：兩造關係為配偶或前配偶為最多，其暴力導因最多是因為生活細故，其後為酗酒、因核發保護令報復及金錢因素，而案發時間最多在下班時間到凌晨，其中以晚上8點到10點所佔比例最高，在違反保護令罪的行為態樣以實施精神之不法侵害多於身體上之暴力，實施身體暴力行為態樣中最多的是徒手施暴，而精神上暴力行為最多則為言語辱罵及騷擾。三、在行政面向發現：在違反保護令案件中5成的案件，案發當時是由被害人自力救濟，事後才至警局報案處理，而在判決書中也未見社政系統角色的介入。四、在司法面向發現： 違反保護令罪的部份若是有起訴的案件，有很高的比例均判決有罪，而在判決有罪的案件中判決有期徒刑的比判決拘役的比例高出很多，但雖違反保護令罪雖判有罪的比例很高，其判決有罪之有期徒刑刑期並不高，多為6個月以下，且可易科罰金，而法官所認定被告違反保護令之款項中最多為禁止實施暴力及禁止騷擾等行為，法官量刑則依被告違反保護令意圖之強烈而加以量刑，量刑理由包括累犯、併其他犯行及恣意違反保護令等。而法官審理違反保護令案件時間有超過8成案件在半年內審理完畢，可讓案件受害人及加害人減少因長期法律訴訟所帶來的身心疲憊。但在核發保護令後3個月有6成加害人即再度犯行。本研究發現案件被害人雖因受暴而聲請保護令，在甫核發保護令時，應更加注意與被害人制定安全計劃並確實實行，方可保護家暴被害人的安全。
文末依據研究結果提出之對家庭暴力防治政策在家庭層面、行政系統及司法系統的建議。在家庭層面中提出二點建議：一、家庭暴力防治法及保護令宣導仍需強化並持續地向前推進。二、被害人甫核發保護令後應加強保護其人身安全。在行政系統中提出二點建議：一、加強警政及社政網絡間合作。二、對於核發禁暴、禁騷款項及前有違反保護令罪之加害人多加巡查約制。在司法面向中提出三點建議：一、提高違反保護令罪的判刑刑期。二、執行保護令認知教育。三、家暴案件進入修復式司法的可行性。
 

● English Abstract:

     In 1998, the Legislative Yuan enacted the Domestic Violence Prevention Act, which contains a number of domestic violence protection and control measures, with the protection order system functioning as a core policy. This made Taiwan become the first Asian country with the protection order system.However, its implementation and effectiveness must rely on the authorities concerned to impose protection order mandatory sanctions on those violators, in line with the enforcement of the “crime of violation against protection order.” This measure will prove to be the most declarative and deterrent. .
Thus, this study, through the decision analysis of protection order violations, is to explore and assess how the domestic violence prevention policy is being enforced in Taiwan. As far as research methods and research designs are concerned, the use of Archival Analysis in the qualitative research through the search system of the referee database in the Judicial Yuan was adopted to systematically organize and study the convictions of protection order violations in each court and then developed indicators for the purpose of analysis.
Given that this protection system must closely coordinate the administrative, judicial and other establishments as well as the family to bring out its effectiveness to the full, the indicators of this analysis was divided into three aspects in the first place: the family of the defendant, administrative systems and judicial systems. Besides, this analysis also referred to the (relevant) Justice Statistics on protection order, complete with the convictions of its violation and decision analysis released by the Judicial Yuan and then compared their results to ensure that the overall trend of the enforcement and effectiveness of this protection order will be more specific.
The conclusion of this research consists of five aspects: overall analysis, the respective roles played by the family, administrative and judicial systems and the analysis of particular cases. At the end, suggestions , based on the findings of the research, about the role of the domestic violence control policy played in the family, administrative and judicial systems are presented.
Through the research into the referee analysis of the crime of violation of protection order, the following are found :
First of all, the overall analysis indicated that the number of cases of claiming and issuing civil protection order by district courts tend to rise year by year. Of all the claims, an average of 60 percent are granted and less than 10 percent are guilty of violating the order. However, of all the orders meted out by district courts, most are bans on domestic violence.
Second, in terms of familial factors, the relationship between the involved two parties is mostly that of husband and wife or ex-spouses. The major cause of violence is linked with daily trifles, followed by alcoholism and then retaliatory actions triggered by the implementation of the protection order. Most violations happen between off-office hours and the small hours in the night. Among them, those that occur between 8:00 PM and 10:00 PM account for the largest percentage. As far as violation of the protection order is concerned, the number of unlawful mental violence cases goes far beyond that of physical violence cases. Most of physical violence is done with bare hands, while mental abuse is mostly presented in the form of verbal abuse and harassment.
Third, in terms of administration, among the violation cases, fifty percent are reported to the police by the victims themselves afterwards. However, no evidence of intervention of social work systems has been found in the verdicts/rulings.
Fourth, from judicial viewpoint, a considerably high percentage of perpetrators in these cases, if prosecuted for violation (of the protection law), are declared guilty. Among the convictions, a lot more (perpetrators) are given prison sentences rather than detention orders. Though a high percentage of violation cases are declared guilty, only a small percentage are given prison sentences, most of them less than six months or replaced with a pecker payoff. Bans on violence and harassment are the most common rulings judges give. Prison sentences are meted out in accordance with the degree of (perpetrators’) violation. Reasons for imposing sentences include repeat offenders involving other offenses and wanton violation of the protection order. More than 80 percent of the violation trials are completed in six months, which reduces the physical and mental exhaustion suffered by the victims and perpetrators on account of long-term legal proceedings. However, 60 percent of the perpetrators repeat violation three months after the protection order is issued. This study found that although the victims of domestic violence claim protection orders from the relevant agencies, they should, shortly after the order is issued, work out safety mechanisms with the perpetrators and put them into effect to the letter so that their safety can be ensured.

At the end of this thesis, suggestions, based on the findings of the research, are brought up on the family violence prevention polices from the perspective of family factors, administrations and judicial establishments. Regarding family factors, two suggestions are raised: First, promotion of the Family Violence Prevention Act and the presence of protection orders should be stepped up and pushed forward. In addition, the protection of the individual victims should be intensified as soon as the protection order is issued. On the part of the administrative system, the cyber network between the police and social agencies for coordination and cooperation should be enhanced. Besides, more check-ups and bans should be imposed on the receivers of protection orders and convicted perpetrators. On the part of the judicial establishment, prison sentences for protection order violations should be extended. Second, cognitive education campaigns on the protection order should be staged nationwide. Third, the potential feasibility of transforming domestic violence cases into fixed-style justice should be carefully studied。
 

● 文章連結： https://hdl.handle.net/11296/c753m7

● 資料來源：臺灣博碩士論文知識加值系統