緩起訴負擔條件之刑罰性探討

Analxsis of Punitiveness in Deferred Prosecution with Conditionality

民國91年新增的緩起訴制度施行至今已十餘年，檢察官為緩起訴處分時，得命被告為一定負擔條件，從其負擔條件的內容來看，有涉及對財產的剝奪或服勞務，其與刑罰內容類似，故對被告而言緩起訴負擔條件是否是實質上的刑罰？此為本文所欲探討之主題。本文擬從以下角度來觀察，首檢討刑罰之性質為何，與緩起訴負擔條件又有何異同，接著此處亦涉及一事不再理原則，與行政罰法第26條所規定的刑事先行原則有關，若檢察官命被告為負擔條件時，行政單位得否再行處置？故負擔條件是否屬於依刑事法律之處罰，是此處的關鍵。無獨有偶，海峽彼岸的歐洲曾見討論這些提問，深具參考價值。最後本文基於前述探討，重新檢視緩起訴負擔條件內容，並認為應肯認涉及人民權利之負擔條件係具制裁的性質。既然緩起訴處分之負擔條件實質上具制裁性質，則有重新檢討目前的緩起訴制度設計是否恰當之必要。

It's been more than a decade since the establishment of the deferred prosecution system in 2002. In making a deferred prosecution agreement, prosecutors may require the defendant to bear certain burdens or meet certain conditions, whose contents are akin to that of criminal punishment. Therefore, this study aims to discuss whether the burdens and conditions imposed in a deferred prosecution agreement are in essence criminal punishment for the defendant. First, the study examines the nature of criminal punishment, and the similarities and differences between criminal punishment and the burdens and conditions imposed by deferred prosecution. The section also touches upon the principle of ne bis in idem. Prosecutors' requirement for the defendant's bearing of burdens and compliance with conditions begs the question of whether administrative units are allowed to impose additional punishment. Hence, whether those burdens and conditions belong to punishment of criminal laws becomes the key. Coincident ally, European countries have also raised questions regarding the issue, and the legal discourse they have engaged in serves as a source of reference. Finally, based on the discussions above, the study concludes that the burdens and conditions imposed by deferred prosecution are by nature punitive, warranting a re-examination of the current deferred prosecution system.