現行偽證罪規範之缺失與建議

The Shortcomings and Suggestions to the Regulations on the Offense of Perjury

偽證罪具有詐欺性質，為了確保證人陳述的真實性，我國法是以書面具結，西方國家則透過宣誓或確證的形式，皆為證言真實性之程序擔保。現行偽證罪規定證人於檢察官偵查時為虛偽陳述者，得成立偽證罪，違反公平與武器平等原則，也不符合刑事訴訟的改良式當事人進行原則。偽證罪保護的法益是國家司法功能的正確性，讓法院能夠獲得正確的判決基礎，檢察官的偵查結果僅具暫定效力，證人僅於法官審判時為虛偽陳述，方有真正侵害國家司法權正確行使之虞。被告與證人在訴訟程序中的權利與地位不同，成立偽證罪的適格主體只有證人、鑑定人與通譯，故虛偽陳述時的身分影響偽證罪成立與否。被告雖不能成立偽證罪的正犯，但也沒有權利或理由教唆或幫助第三者作偽證。基於刑事政策考量與避免刑罰漏洞，建議增訂處罰未具結之虛偽陳述、使他人虛偽陳述之行為、具結者之過失偽證行為、陳述緊急避難與修正自白之規定。

The offense of perjury is with the nature of fraud. To ensure the authenticity of the witnesses’ statements, it is ruled by the affidavit in Taiwan while by the oath or affirmation in west countries. These are in the process to guarantee the authenticity of statements. According to Taiwan’ s Penal Code Article 168, a witness at an investigation before a prosecutor makes a false statement on a matter material to the case could be charged with the offense of perjury. It is because of the contradiction with the principle of equality of arms. The offense of perjury is to protect the legal interest to the correctness of judicial functions by reaching the fundamentals for proper verdicts from the courts. The results of prosecutors ’investigations are only with temporary effects; therefore, it might be under the suspicion of the infringement to the correctness of judicial functions only when the witness makes a false statement at a trial before judges. During the process of the trial, there are different rights and status to the defendants and witnesses. The appropriate subject of offenses of perjury is the witness, expert witness and the interpreter. Therefore, the person’s status identity when making a false statement is the key to the commission of the offense of perjury. Though the defendant could not be the principal of the offense of perjury, he or she also has no right nor reason to aid or abet a third party to commit perjury. For the sake of criminal policy and avoiding loopholes in the penal code, this article provides the legal advices to modify the regulations—with the punishments on false statements without affidavit, on the act of making others to make false statements, on the negligent act of perjury with affidavit and on the averting imminent danger under conditions as well as the confession.