羈押審查與救濟程序之研究——以德國法為中心

Abstract

自司法院釋字第392號解釋出爐後，我國羈押法制之發展，總算步上法官保留之正軌。可惜兩年後之刑事訴訟法修正，未能先對外國法制有通盤之理解，多以參考「單一條文」之方式，企圖重構羈押章節，乃至於羈押前之拘捕相關規定。於是，雖然當年之刑訴修法，諸多規範「號稱」仿效德國刑事訴訟法而制定，時至今日若對照兩國之羈押制度，即可發現仍存在嚴重之「錯位現象」。因此，對於繼受法國家而言，如何避免「超譯」外國法制，及如何找出合理之比較基準點，無論何時皆屬值得深入思考之課題。 本文即以此為出發點，嘗試描繪出德國羈押法制之全貌，包含羈押之聲請、決定及救濟程序，時間軸則含括偵查、審判階段，一直到刑罰執行前之羈押。期待本文所建構之德國法羈押體系，能為未來之改革方向，指引出一條可行之道路。最後並挑選數則實務案例，歸納出我國近年來廣受討論之問題，除藉此釐清繼受之初，對於比較法之誤解，亦借鑑德國羈押法制之精神，以提出可能之解決方案。

After the release of J.Y. Interpretation No. 392, the development of the legal detention system in Taiwan was, finally on the right track of the Principle of Judge Reserved. Unfortunately, two years later, the amendments to criminal procedural law failed to comprehensively understand the foreign legal system. Most of the amendments referred to “single articles” of the foreign law, attempting to reconstruct the detention chapter and even the relevant provisions on arrest before detention. As a result, although many provisions were claimed to follow German criminal procedural law following the amendments to the criminal procedural law in that year, there are still serious misplacements when comparing the legal detention systems of the two countries. Therefore, for the receiving country, how to avoid “over-translating” a foreign legal system and how to find a reasonable benchmark for comparison are worthy of further consideration. This paper uses this as a starting point and attempts to paint a complete picture of the German legal detention system. It contains the applications, decisions, and remedial procedures for detention, and the timeline includes the investigation and trial stages, until pre-sentencing detention. It is expected that the German detention legal system constructed in this paper can provide a feasible path for future reforms. Finally, several practical cases were selected to summarize the issues that have been widely discussed in recent years in Taiwan. In addition to clarifying the comparative law misunderstandings at the beginning of the reception, this work also draws on the spirit of the German detention legal system, in order to propose possible solutions.