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題 名 | 從羈押審查論被告司法人權維護--兼評釋字第六六五號=A Study on Safeguarding the Judicial Human Rights of the Accused from the Aspect of Detention for Trial and Comments on the Interpretation NO.665 by the Grand Justices |
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作 者 | 石宜琳; | 書刊名 | 法學新論 |
卷 期 | 39 2012.12[民101.12] |
頁 次 | 頁85-121 |
分類號 | 587.833 |
關鍵詞 | 羈押; 重罪羈押; 法律保留原則; 比例原則; 無罪推定; Detention; Detention for felony; The principle of legal reservation; The principle of proportionality; Probable cause; Presumption of innocence; |
語 文 | 中文(Chinese) |
中文摘要 | 羈押係拘束被告身體自由,而將之收押於看守所,旨在保全被告與證據,俾達追訴、審判及執行順利進行之目的,是羈押係干預人身自由最大強制處分。 一九九七年十二月十九日羈押權回歸憲法,基於「法官保留原則」,羈押之准駁,統一由法官審查決定,但法官裁准羈押時,尚應遵守「法律保留原則」、「比例原則」,羈押理由尚不得任意創設。「重罪羈押」於釋字第六六五號出爐後,已不再是獨立之勒押原因,應限縮在併存有滅證或串證或逃亡之虞,始得為之,此固值讚許,但大法官未要求立法機關重新修法,使之具體法律明文化,俾符「法律明確性原則」,仍屬憾事。 |
英文摘要 | Detention is adopted to keep the accused in custody in the detention center with a view to limiting the physical freedom of the accused. It is meant to keep the accused as well as the evidence so that the prosecution, the trial, and the execution will proceed smoothly. It is the most powerful compulsory measure for interfering with the personal freedom. Since December 19, 1997, the detention right has been under the regulation of the Constitution. According to “the principle of judge’s reservation” the permitting and the overruling of the detention arc unitarily examined by the judges. But when the judges give a ruling to detain the accused, they still have to follow “the principle of legal reservation” and “the principle of proportionality.” In addition, the reason for detention is not supposed to be arbitrarily fabricated. With “the Interpretation NO. 665 by the Grand Justices” publicized, “detention for felony” is no longer the independent reason for the detention. Instead, the detention can only be ruled on condition that there may be a possibility for the accused to destroy the evidence, to abscond, or to collude with others to falsify their testimony. This is worth applauding. Nevertheless, the Grand Justices did not demand the legislative body to amend the law and codify it to conform the “principle of clarity and definitensee of law”, which is regrettable. |
本系統中英文摘要資訊取自各篇刊載內容。