搜索概念之解構與重建

Abstract

對於我國刑事程序中搜索行為的發動，多數人以為依現行刑事訴訟法之規定，似皆應具備「搜索令狀」及「相當理由」等要件，始得為之。然而，偵查手法何其多元，對基本權所造成之干預程度也不一而足，齊頭式的要求是否足以保障人民的基本權利？是否足以滿足國家偵查效能的需求？非無疑義。申言之，「比例原則」作為一個權衡公、私益的憲法法理，應足以作為一個判斷的標準，均衡地調和二大利益，兼顧人權保障與偵查效能。 搜索發動的前提須該當「令狀原則」及「相當理由」，業如前述。惟何謂「搜索」行為，於比較法上實務及學理的見解素有爭論，本文慮及搜索行為主要涉及的基本權利，及觀諸搜索行為特有的行為本質，爰提出「基本權防禦功能理論」，冀能正確且精確地掌握「搜索」概念，並得以因應偵查機關日新月異的搜索技術，更能正當化「證據排除法則」的存在基礎，而使刑事訴訟法與憲法產生緊密的連結。 雖於我國的刑事訴訟法中，對於搜索行為的規範仍存有瑕疵，惟卻已有相當規模的條文以資規範。相對於此，行政領域中諸多帶有搜索性質的行政行為，迄今尚不見規範條文，本文主張在尚未立法規範以前，得依憲法第23條、行政程序法第7條及第4條之「比例原則」，作為拘束此類行為的法源依據，據此，亦得將搜索法制的基本法理導入行政領域，以弭法治國的漏洞，進而杜絕國家恣意濫權的弊端，防杜「刑事法遁入行政法」的情事發生。

Many people believe that to conduct a search, the requirements of ‘warrant’ and ‘probable cause’ should be met under the Code of Criminal Procedure. However, the investigative techniques are multivariate and its influence over people’s constitutional rights is also diverse. Thus there are some doubts about whether the uniform requirements could really safeguard people’s constitutional rights, and whether it satisfies the need for investigative efficiency. In fact, the Principle of Proportionality, as a balancing constitutional jurisprudence, could be the criterion for judgment which harmonizes and reconciles the interests between the individual and the country evenly. In other words, it takes both the protection of human rights and the preservation of investigative efficiency into consideration. As mentioned above, the requirements of ‘warrant’ and ‘probable cause’ are the preconditions for conducting a search. But defining the ‘search’ has always been a topic that has sparked off considerable debate between courts and academia. Considering the kinds of constitutional rights a search mainly affects and the nature of it, here I conclude with ‘The Defensive Function of Constitutional Rights Theory’, hoping we could correctly and precisely comprehend the concepts of the search, and could cope with the updating development of modern searching techniques. Moreover, it justifies the ‘exclusionary rule of evidence’, and strengthens the relationship between the Code of Criminal Procedure and the Constitution. Although there are some defective Articles in the Code of Criminal Procedure, there are still some Articles that could regulate the searches. Relatively speaking, many administrative actions are searches in their nature, but there is still a lack of related regulations today. In this regard, I suggest that Article 23 of the Constitution and Article 7 and Article 4 of the Administrative Procedure Act, the Principle of Proportionality, would serve to regulate this kind of actions. Thus it will not only realizes jurisprudence of search, but also eliminate the loopholes in the principle of rule of law. In addition, it will prevent our government from overextending its power and conducting illegal searches in the disguise of administrative actions as well.