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http://www.guokr.com/post/352839/
這裡說那段引文是法輪功和他的好朋友說的，但我Google不到作者引的那段英文，可信度成疑...

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THE HONECKER TRIAL:THE EAST GERMAN PAST AND THE GERMAN FUTURE
http://kellogg.nd.edu/publications/workingpapers/WPS/216.pdf

p.9開始：
But from the first day of the proceedings the trial was marked by controversy. The credibility of the presiding judge, Theodor Seidel, was impaired because he had once belonged to an organization that smuggled refugees out of East Germany and he did not try to hide his political biases at the trial. Moreover, Seidel was never able to insulate his court from the frenzied attention of the media. For our purposes, however, the most problematic aspect of the trial lay in the way Seidel went about finding the defendants guilty of their crimes.

[…] [O]ne might have expected Seidel to base his judgment against the defendants upon their erroneous interpretation of the law or, at least, upon the fact that the appeal to superior orders had ultimately failed to win the judges’ sympathy at Nuremberg. Yet, interestingly, the judge acted as if the existence or nonexistence of previous statutes or precedents was irrelevant to the case. The real issue was what kind of state the GDR had been. Explicitly citing the Radbruch principle, Seidel emphasized that one could not respect the laws of a regime whose leaders enjoyed “no form of legitimation [durch nichts legitimiert waren].” In his view, the legal standards of the GDR stood—again he used Radbruch’s terminology—in “crass contradiction to the generally recognized foundations of the rule of law.” Therefore, the guards’ claims that they were merely following orders in taking the lives of innocent human beings were not compelling. “Even in the former GDR,” Seidel concluded, “justice and humanity were understood and treated as ideals.” Hence, the soldiers must have recognized the immorality of their actions: “shooting with the intent-to-kill those who merely wanted to leave the territory of the former GDR was an offense against basic norms of ethics and human association.”

[…]

But was acting immorally the same thing as breaking the law? This was the decisive question for the more famous trials to come. For on this count quite a number of German scholars and several appeals courts parted ways with Seidel. There was widespread agreement about the guards’ moral culpability, but many experts felt that Seidel’s invocation of a higher law ran right up against the prohibitions within the Basic Law and the Unification Treaty on ex post facto lawmaking. This was the unmistakable message that was conveyed at the second of the border guard trials, which began on 18 December 1991, and became the precedent for all subsequent proceedings. In this instance, two soldiers were charged in the 1984 shooting death of an individual who had sought to escape over the Wall into West Berlin. Both defendants were found guilty, but this time, in contrast to Seidel’s more free-wheeling reasoning, the court was at pains to demonstrate that justice could be pursued only within the bounds of East German law.

In her ruling of 5 February 1992, Judge Ingeborg Tepperwein explicitly turned to the Border Law of 1982 to show that each of the defendants had exceeded his authority in shooting to kill. Tepperwein conceded that the GDR’s criminal code gave the soldiers the right to use forceful measures of some kind to prevent illegal border crossings. However, she noted that the East German code was similar to the law of the Federal Republic in one crucial respect: it required that the means employed to prevent a crime be proportionate to the crime being committed. In this instance, the judge argued, “the flight of a single, unarmed person from whom there was evidently no apparent danger for other persons or things” could not be considered a violation serious enough to justify the use of deadly force. Moreover, Tepperwein added, GDR Border Law specified that the guards seek to “preserve human life if possible” (Section 27.5). Therefore, she concluded that one could reasonably have expected the soldiers to chose only the “mildest means” available—for example, “a single, deliberate shot at the legs”—to fulfill their obligations.

In her nearly exclusive emphasis upon codified East German law, Tepperwein was not only setting an important precedent. Her ruling was noteworthy for the tone that it set. Despite finding both defendants guilty, the judge suspended their sentences after reading her decision. Like Seidel, Tepperwein acknowledged that “superior orders” could not be used to excuse or to justify criminal behavior. Nevertheless, she emphasized that the two soldiers were operating in conditions that militated against completely independent action on their part. “Not selfishness or criminal energy” had led to their crime, Tepperwein contended, but “circumstances over which they had no influence, such as the political and military confrontation in divided Germany [and] the special conditions of the former GDR.” Thus, it was appropriate that their punishment be administered accordingly. As sensible as this nuanced view of the East German past might have appeared at the time, it did give rise to a tantalizing question. If the border guards were not completely responsible for their actions, who then should also be held accountable?

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Originally posted by vater von hase

法律是应该极端理性的，就是只有黑与白。而不存在比例问题！
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作為人類的希望，民主的燈塔-美國早前剛在白宮門前擊斃不聽勸告試圖闖入的黑人婦女以及她的嬰兒。

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看狀況，不過衛兵因格其實能先射擊不會死的地方。

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Originally posted by ian125

其實認真來說，他們哪來的信心認為去行政院就不會被驅離？
就算真的不偷不闖沒砸窗(反正目前統一說法說那都是國民黨黨工幹的)，行政院是那種可以讓你半夜隨便去晃一圈的地方嗎？

或許台灣其實不需要政府跟法治吧，都說人民自決嘛

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Originally posted by 慎．中野

這是各位對現在德國的民風有所不知。

因為納粹的種族滅絕集中營後遺症，現德國國防軍很強調「要將個人良知的一線
擺在軍隊命令前面」的教育。以避免納粹德國那種一聲令下整個組織變成自動化
殺人機械的狀況重演。

所以這個案例的判決是遵照這種精神做出來的，就是即使上級命令士兵做出反道
德的行為，士兵也應該遵循自己的良知加以迴避。

二戰後戰犯審判中還可以找出很多這種爭議性的案例，可以來討論遵命或抗命的
合理性。

問題點在於遵循個人良知的結果很可能是違反軍令受審，甚至更嚴重的對自己個
人的人身迫害，要遵循良知確實是需要相當的勇氣。

不是每個人都像奧斯卡．辛德勒（Oskar Schindler）一樣願意賠上自己的人生
跟事業又冒著極大的風險來救人。

當年搞出證明普通人也會在狀況設定之下行惡的爭議性史丹佛監獄實驗的教授，
據說現在正在研究可否有方法培育普通人產生這種抵抗所屬組織惡行的勇氣。我
也很想知道有無這種方法存在。

但是我可以打包票的說一件事，要把普通人訓練成對無武裝的女人小孩老人也能
毫不猶豫開槍的冷血殺人機械，要容易得多，我個人也很清楚這種方法。

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Originally posted by imahuman

民風歸民風，那篇判詞本身在德國似乎也是相當具爭議性的

不是說我們應該無視個人良知，
但作為法官放著不用符合法律原則的解法而在判決時暴走，
然後一群人把暴走的部分當成至理明言，
總讓人覺得怪怪的

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那把尺在哪？

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Originally posted by 慎．中野




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爭議點在於警察驅離的手段是否有必要以上的暴力吧。

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Originally posted by change.she
如果爭議點只有在這裡，
為什麼會扯上鎮壓、下令驅離的行政院長呢？

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