從偵查法官、預審法官到自由權法官─從歐盟統一刑事法典（Corpus Juris）論偵查中法官角色之趨勢
Other Title
From judge of investigation, examining judge to judge of freedoms in Corpus Juris-
On the trend of judges' changing roles during the process of investigation
On the trend of judges' changing roles during the process of investigation
Date Issued
2005
Date
2005
Author(s)
DOI
932414H002026
Abstract
There has been a recent trend in Taiwan’s criminal procedural law towards bringing
judge in to issue or authorise the acts on restricting important human rights during the
process of investigation such as the decision about custody and search. Besides, the
decision with regard to interceptions of communications is planned for the judge’s
exclusive power. Once the judge appears in the process of investigation, the role and
the duty of the judge should be concerned. How should we form the system to bring
the judge in during the process of investigation? Should we let the judge to have the
right to make the above-mentioned decisions? Or, should we set up a particular judge
for the purpose of making decisions on the important human right issues in the
process of investigation like the magistrate in America or the judge of investigation in
Germany? Is there any advantage or disadvantage under this kind of system? These
problems will be confronted by Taiwan’s criminal procedural academic and practical
circle in the future.
This study focuses on relevant developments in European Union especially the
system of “judge of freedoms” (“Freiheitsrichter”) in Corpus Juris. “Judge of
freedoms” is an independent and impartial judge who exercises judicial control
throughout the preparatory stage of proceedings. Pursuant to the Article 25 of Corpus
Juris, any coercive measures on restricting rights and fundamental freedoms which is
taken during the course of an investigation and affects a witness or the accused must
first be authorized by the judge of freedoms. The duty of the judge of freedoms is to
check whether the measure is lawful and regular or not. They have to make sure that
the principle of necessity and proportionality are respected. The function of judge of
freedoms is analogous to the judge of investigation in Germany. However, there is
another scheme in France: examining judge. Why European Union chooses Germanic
but not French system? This study will examine some possible reasons and discuss
how European Union's experience may shed light on Taiwan's reform of the system of
judge in the process of investigation.
Furthermore, Corpus Juris is also a popular international criminal legal issue today.
The recent prosecutions and trials of international war criminals, such as Slobodan
Milosevic (former President of Yugoslavia) and Saddam Hussein (former Iraqi
President), attract widespread attentions. The solution of international crimes needs
international cooperation and concerns all the members of the global village including Taiwan. Therefore, we should pay more attention to this issue. Being a part of the
international criminal law system, Corpus Juris plays an important position, and it is
very worthy to be researched.
In conclusion, through the investigation of the system of “judge of freedoms”
（“Freiheitsrichter”）in Corpus Juris, this study will deal with the problems of
judicial control throughout the process of investigation. This study also attempts to
offer some alternative viewpoints for relevant legislation in Taiwan. Meanwhile,
through taking a panoramic view of Corpus Juris, this study includes some articles,
and is trying to make efforts to expand the field of Taiwan’s international criminal law
studies.
Subjects
Corpus Juris
examining judge (Untersuchungsrichter)
judge of
investigation
investigation
judge of freedoms (Freiheitsrichter)
process of investigation
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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