論拒絕證言權對於取證強制處分之限制：以親屬與業務拒絕證言權為例

The Restrictions on Coercive Measures Aiming at Obtaining Evidences Through the Right of Refusal to Testify: Take the Right of Refusal to Testify Based on Kindred and Professional Identity as an Example

依據現行刑事訴訟法，對於親屬與業務拒絕證言權人之強制處分，原則上並不受到特別的限制。因此，辯護人作為業務拒絕證言權人之一，就被告所告知之秘密雖然得拒絕作證，國家卻得扣押記載相同內容的文件，監聽雙方的電話通訊，使得拒絕證言權被架空。為了防止拒絕證言權之規範目的被規避，對於拒絕證言權人之強制處分，是否以及在多大範圍內必須受到限制，成為有待解決的立法政策問題。本文將提出一個以規範目的為導向的立法框架，作為我國未來修法的理論基礎。本文將先指出，親屬拒絕證言權之規範目的在於保障證人免於被迫將親屬被告定罪，業務拒絕證言權之規範目的在於保障當事人之隱私利益。為了貫徹上述拒絕證言權之規範目的，對於拒絕證言權人之強制處分，在立法上應該附加特別的限制，只不過基於親屬與業務拒絕證言權人之規範目的不同，應予限制的強制處分種類、程度、範圍也有所不同。為了保障辯護人之獨立性與接見通信權，對於辯護人之強制處分，應該適用比其他業務拒絕證言權人更為嚴格的限制。

the coercive measures imposed upon people who have the right of refusal to testify during trials based on kindred and professional identity. Based on the recent criminal procedure law, even if attorneys have the rights of refusal to testify based on professional identity, and are allowed to refuse to testify about secrets which the defendant has told to the attorney during trials, the government still could achieve the same contents as the testimony by seizing documents, wiretapping and so forth. Those coercive measures, however, would hollow the attorneys' rights of refusal to testify. To avoid the government hollows the right of refusal to testify by means of other coercive measures, it has become a pending problem that whether we should restrict the coercive measures imposed on people who have the right of refusal to testify or not. If the answer is positive, on the next step, we should discuss the restrictive scope. First, in this article, I will point out that the purpose of kindred refusal to testify is to protect the witness, to avoid forcing the witness to criticize the defendant who is a relative of the witness. It shows that the purpose of the right is different from the kindred and professional identity, and the latter is to ensure the interest of defendants. To achieve the above-mentioned purposes, the coercive measures imposed on those who have the rights of refusal to testify should attach special restrictions. However, based on the different purposes of different kinds of the right of refusal to testify, the scope and measure of restriction attached to coercive measures will be different as well. To protect the independence of attorneys and communication privilege within attorneys and defendants, the coercive measures imposed on attorneys should append to stricter restrictions than other professional identities.