轉型正義的機制與脈絡因素之比較研究——以西班牙與臺灣為例

作者：李依庭（國立臺灣大學法律學系碩士生）

摘要：

西班牙與臺灣在過去獨裁統治時期及隨後的民主轉型時期有著極為相似的歷史背景與政策選擇。在民主轉型時期，兩國均選擇以沈默回應過去人權侵害，而非採取審判模式。本文以「獨裁統治時期結束後第一次民主選舉」作為民主化的起點，觀察西班牙與臺灣在其後所採的官方轉型正義機制。西班牙於 1977 年通過大赦法，禁止任何形式的真相調查；臺灣則於 1990 年代通過幾項賠償法，主要針對政治受害者進行金錢賠償。

值得注意者是，在多年以後，西班牙與臺灣面對轉型正義的態度及成就發生重大轉變。西班牙於 2007 年通過《歷史記憶法》，更於 2020 年批准《民主記憶法草案》；臺灣，自 2016 年起，通過數項轉型正義相關的立法，更成立促進轉型正義委員會，啟動過去人權侵害的真相調查。

本文探討兩項問題：西班牙與臺灣於民主轉型時期的轉型正義政策選擇，及多年後重新取得進展，其脈絡因素為何？西班牙與臺灣於轉型正義上的成果及未竟之業為何？

關鍵字

轉型正義、過去人權侵害、臺灣、西班牙、公民權利及政治權利國際公約、大赦法、歷史記憶法、民主記憶法草案、促進轉型正義條例、政黨及其附隨組織不當取得財產處理條例、促進轉型正義委員

Mechanisms and Contexts of Transitional Justice in Spain and Taiwan: A Comparison

Author：Yi-Ting Li (MA student, College of Law of National Taiwan University)

Abstract：

Spain and Taiwan have highly similar historical backgrounds and made similar policy choices in their respective past dictatorships and subsequent periods of democratic transition. During the period of democratic transition, both states chose to respond to past human rights violations in a more reserved manner instead of taking on a punishment model. Some scholars suggest that the period of democratic transition does not end until transitional justice is fully completed. Therefore, this article marks the first election after the end of dictatorship as the beginning of democratization and observes the official measures undertaken by Spain and Taiwan dealing with past human rights violations thereafter. Spain passed the Amnesty Law in 1977 to prohibit any investigation of past crimes; Taiwan passed several compensation acts in the 1990s, mainly aimed at monetary compensation for political victims.

Interestingly, the attitudes and achievements of Spain and Taiwan have changed significantly over the course of several decades. Spain passed the 2007 Historical Memory Law and drafted a bill, the Democratic Memory Act, in 2020. Taiwan has since passed several transitional justice-related laws, and even established the Transitional Justice Commission, which functions as a truth commission, taking the initiative to investigate the truth.

This article aims to analyze two issues. What are the contextual factors for Spain and Taiwan when addressing transitional justice during democratic transition and what are those which are applicable once progress has been made many years later? What efforts have Spain and Taiwan made and what is still to be done in the future? This article argues that three essential factors have shaped the recent achievements of transitional justice in the two states: the nature of their democratic transition, the efforts of civil society, and the interaction of political power. Notably, however, as such progress has been dependent upon these various factors, the recent achievements in both states are full of instability. States must carefully examine the compatibility of transitional justice projects with international human rights law. Otherwise, these efforts will result in political retaliation, or even worse, risk being overturned when political power is transferred.

Keywords

transitional justice, Taiwan, Spain, Democratic Memory Act, Act for Promoting Transitional Justice

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