搜索、扣押修法後相關配套措施之研究
Other Title
The Amendment of the Rules concerning Search and Seizure: A Study on the
Matching Arrangements
Matching Arrangements
Date Issued
2002
Date
2002
Author(s)
DOI
902414H002026
Abstract
Search and seizure are means designed by Criminal Procedure to find the whereabouts
of the accused and to prevent the destruction of the evidence. However, a search,
either to the accused or the third party, is a violation to the fundamental rights of the
people. These rights might be infringed by the execution of a search includes at least
the sanity of a person’s house and the right to privacy. Moreover, a seizure, which
usually follows a search, shall definitely restrict a person’s right to property. Thus,
how should we design a search and seizure system which can effectively prosecute
the criminals on one hand and protect the people from overbroad restraint of their
fundamental rights on the other hand? What kind of legal effect shall we give to an
unlawful search to keep searches in judicial control? For years, those issues have
been the focus of study in every legal system.
Although search warrants have long been required by law since the enactment of our
Criminal Procedure in 1928, the issuance of warrants are not conducted by judges
alone. During the investigation phase, i.e., before the indictment being filed, search
warrants are issued by Public Prosecutors. This kind of system has long been
criticized as violating the principle of neutrality. Since the prosecutors are persons
responsible for criminal investigation, they should not conduct the issuance of search
warrants. Voice demanding giving the right to issue warrants from prosecutors to
judges reached its summit after some prosecutors searched the office of Legislator
Liau and China News Daily. As a result, the Legislative Yuan passed a bill to
deprive the prosecutors of the right to issue search warrants.
After we adopted the new “judge-issued warrants only” system, what kind of
counterparts shall we need to make it feasible? Shall we make some change to the
organization of our courts, such as setting up highly qualified “investigative judges”
who are responsible for the issuance of warrants? How should we design the
procedure for the issuance of search warrants, inter alias, the separate rule of evidence?
What is the legal effect of unlawful search? “Earlier study, better solution”, this
study aims at the issues caused by this recent amendment and their solutions. This
study shall analyze the new law and its necessary counterparts thoroughly and draft a
manual for the practicing lawyers and judges.
Subjects
search
seizure
warrant requirement
investigatory judge(magistrate)
SDGs
Publisher
臺北市：國立臺灣大學法律學系暨研究所
Type
report
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