鑑定留置制度之研究
Date Issued
2004
Date
2004
Author(s)
DOI
922414H002031
Abstract
A group of amendments is among the revised articles in the Code of Criminal
Procedure (CCP hereafter) which is pending in the Legislative Yuan before being passed to become new laws. (Revised Articles CCP 203, 203-1, 203-2, 203-3, 203-4).
According to the background interpretation to the amendment draft, to serve the end
of sound fact-findings and decent law-application, it exists the need of forcing the
accused to a hospital or other institutes to take a mental evaluation check-up. Since
such measure will unevitably limit the physical freedom of the accused so ordered, a
core article of amendments provides that a warrant has to be issued by the court to
permit such tentative detension. The amended provisions also cover the issues such as
duration of the detention, the methode of execution, and the place of detention for
such purpose.
Similar regulations can be found in foreign laws. German Code of Criminal Procedure
(StPO) is an example, which can be taken as a comparison basis. In need of
evaluation the mental state of the accused, a German Court can exercise its authority
to order the accused enter a public hospital for a mental examination, with a prior
consent of the accused or his/her legal counsel. In Germany, such forced measure can
only be executed against the accused with grave suspicion. Like in other similar
contexts, a principle of proportion applies when the court is to consider adopting the
measures. The accused imposed of the disadvantage is entitled to immediate
appealing. An appeal like this will hinder or postpone the execution of the court order
of tentative detention.
While taking an foreign example, Taiwanese amendment proposals neverthless
created several confusing issues for the courts and lawyers. For instance, what is the
starting point for launching this sort of forced measures, or, amounting to what extent
of suspicision with the accused will the measure of this kind is warranted? Another
exmple, although the accused suffering from such decision has a right to appeal, the
appeal action itself can exert no effect to halt the execution of the detention decision.
The accused will not thus benefit from the appeal action. Hence, some kinds of
adjustment with legislation process or judicial administration is evidently necesary.
Based on an “early diagnosis, early cure” priciple, this rearch project is focusing on
the tentative detention amendments, including the various issues originating from the
amendments. While comparising with the provisions covering this issue in German
CCP, the author is trying to present a solution proposal in terms of theorical
interpretatation as well as in practical operation.
Subjects
Tentative Detention for Mental Evaluation
Detention
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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