刑事訴訟法第一六一條起訴審查制度之研究
Date Issued
2003
Date
2003
Author(s)
DOI
912414H002009
Abstract
January 17 th 2002, the Legislative Yuan passed a latest revision bill of Code of
Criminal Procedure (hereafter, CCP). Among the revision, the amendment on Article
161 accordingly gave birth to a new mechanism of “prosecution review” (or
“indictment review ”) in the criminal procedure in Taiwan. According to the
Legislative Reasons for Revision with Art.161, the amendment took as example the
intermediate process (Zwischenverfahren) provided in Article 199 to Art. 211 in
German Code of Criminal Procedure. In German, the Zwischenverfahren mechanism
was introduced into practice since long ago. For a German criminal case, as soon as
the indictment is filed by the public prosecutor, the case enters an intermediate review phase authomatically. Until the judge decides a trial hearing is begun, the case will not
go into its trial phase. From a view of comparative legislation, the intermediate review
is a rare legislative design. Yet since the execution of German intermediate review
system has been in practice for more than a centrury, and the German scholars have
been keeping examing the relative aspects of the system, the outcome of the research
on this issue in German therefore deserves decent attention for the researchers and
practioners from a country with a similar system. As one can imagine, the research in
German could by all means present a profound enlightment for the future
development of the Taiwanese prosecution review system.
One the other hand, while taking example from the provision on intermediate
review process (Zwischenverfahren) in German CCP, the provision of revised Art.
161, CCP is unduly over-simplified. Since the legislative process was undertaken
quite hastily, one can expect quite a few of problems will come up with practical
operation in near future. Here are some examples of them. Is there any time limit
before which the court may make a prosecution review? How should one
appropriately interpret the phrase “before the first trial day” in Art. 161? What is the
legal basis of the interpretation? What is the court organization for holding a
prosecution review process (a sole judge, a judge panel, or an authorized panel judge)?
What evidentiary rule should be adopted for the prosecution review? What will be the
difference between the evidentiary rules for trial and for prosecution review? May the
court investigate evidence on his his/her motion during the intermediate process? Can
the court instruct the prosecutor to go on for further investigation or to add a
particular evidentiary item? All of these questions are subject to further discussion and
research.
Based on the “ earlier study, better solution” theory, this research project takes the
issues originated from the amendment on prosecution review in CCP as its primary
study scope. The provision of intermediate process in German Code of Criminal
Procedure and the related scholar documents and will be cited for making a
comparison. The merits and shortcomings of the amendment will be fully discussed.
For a practical puopose, the study is also trying to work out a manual of guidelines
which could be taken as reference in the dayly practicing for public prosectors and
judges.
Subjects
prosecution review
indictment review
Zwischenverfahren
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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