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題 名 | 相對上訴理由之程序瑕疵及其救濟--以違反就審期間問題之理論與實務為例=The Procedural Defects in Relative Grounds of Appeal by Using the Example of Summons Period |
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作 者 | 林鈺雄; | 書刊名 | 成大法學 |
卷 期 | 18 2009.12[民98.12] |
頁 次 | 頁153-192 |
分類號 | 587.84 |
關鍵詞 | 就審期間; 程序瑕疵; 捨棄; 失權; Summons period; Procedural defect; Waiver; Forfeit of right; |
語 文 | 中文(Chinese) |
中文摘要 | 刑事訴訟法第二百七十二條就審期間規定,保障被告有充分準備辯護時間之權利。就審期間違誤,屬刑事訴訟法第三百八十條相對上訴理由之程序指摘,也是觀察相對上訴理由之程序瑕疵及其救濟的典型事例。就審查順序言,法律審應先確認程序瑕疵存否,再檢討瑕疵與判決有無因果關連或存在瑕疵治癒情形,最後審查瑕疵指摘權是否因故嗣後喪失。其中,應以規範目的判斷瑕疵存否。又除非原審採補救措施以治癒瑕疵,否則應認為有因果關連。指摘權雖可因捨棄或失權而喪失,但以事實審踐行加重告知義務並記明筆錄,當事人確知其權利為要件。就此,我國實務多忽略之。此外,諸如就審期間違誤指摘權之失權主體或時點等事項,實宜立法明文規定。其他程序瑕疵亦同。 |
英文摘要 | To try a case appealed under the Criminal Procedure Code § 380, the appellate court can make a more reasonable judgment by following these requisites: 1. Investigation of the existence of a procedural defect according to the main purposes of the related sections. 2. Examination of the causation between the defect and the former judgment. (the superior court judge can consider the causation nonexistent only in the situation, in which the defect has already been “cured” in the lower court.) 3. Determination of whether the defendant has lost his right of objection. A waiver, forfeit of right, etc. may cause a loss of right. But this should happen only in limited conditions proved by the court records, in which the court has done a very clear notification and therefore the defendant has well understood his right. The violation of the Criminal Procedure Code § 272, which secures sufficient time for the defendant to prepare his trial, is taken as an example for typical procedural defects in this paper. At the end, the author suggests that, for settling the arguments, the superior court should adopt the requisites mentioned above. And more importantly, the legislature should draft more detailed texts about how to deal with procedural defects in the lower court under the current law, so that the superior court could lighten its burden of judging the appeals due to the relevant defects. |
本系統中英文摘要資訊取自各篇刊載內容。