重新探索自由心證：以憲法與刑事訴訟法的價值衝突與解決為核心

Free Proof in Criminal Procedure: What It Means and Why It Conflicts with Other Values

我國社會不信任法院與司法審判機制的現象嚴重，其中重要的原因，是人民經常認為刑事法院因「濫用自由心證」，導致判決標準不一致。然而，自由心證的內涵和價值究竟何在？是否有某種特定、標準的內涵？有哪些可能的運用限制？可能與哪些憲法或法律上的價值發生衝突？又應該如何解決這些衝突？這些問題在文獻上仍欠缺探索。本文寫作之目的，即在於釐清上述問題。本文先說明既有文獻關於自由心證的討論重點，並透過比較歐陸法系與英美法系「證明」概念的發展，指出自由心證的內涵、標準與限制。本文指出：自由心證原則不僅源出於反對法定證據評價原則，更代表了對於審判者認知能力和狀態的某一種特定假設。我國的現況，正是由於對「證據價值」與「判決結果」兩者，採用了不同的假設，導致法院判決常被批評為「濫用自由心證」，本文就此指出可能的解決方案。本文並就法院運用自由心證原則判斷供述證據時，立法者所專設的兩種特殊限制——「補強法則」與「傳聞法則」──切入，探討為何自由心證所欲追求的價值，與其他憲法或法律上的價值可能發生衝突，並嘗試在我國的法制框架下，妥適解決等這些價值衝突。

Article 155, Section 1 of Taiwan's Code of Criminal Procedure (hereinafter ''CCP'') provides, ''The probative value of evidence shall be determined at the discretion and based on the firm confidence of the court, provided that it cannot be contrary to the rules of experience and logic.'' It seems clear that the criminal court has the discretionary power in principle to decide the probative value of evidence. However, the application of this rule has resulted in extreme public dissatisfaction with Taiwan's criminal courts, due to the commonly observed disparity between one judge's discretion and another's, when ruling on cases. This Article argues that the disparity between judges' rulings, that leads to public dissatisfaction, results from a lack of understanding of the principle of ''free proof'', which principle discourages the lawmakers from pre-deciding the probative value and instead authorizes the triers, the judges or the jury, to exercise their discretionary power. This Article points out that the standard of evaluating the probative value of evidence is inconsistent with the standard of deciding the defendant guilty or not in Taiwan, unlike in most other countries where they are consistent. Therefore, Taiwan's judges have to evaluate the individual evidence by ''the firm confidence of the court'' but to achieve the final decision by the standard ''beyond a reasonable doubt''. However, ''the firm confidence'' is subject to the discretion of the particular trier, whereas ''beyond a reasonable doubt'' is subject to the rational standard of a third person. The two inconsistent standards inevitably result in conflicts of values and have made the public feel that there are discrepancies in how cases are decided. This Article also uses confession rules and hearsay rules, as provided in Taiwan's CCP, as examples to show how the principle of free proof may be limited by the Constitutional Court and lawmakers. As for confession rules, Taiwan's CCP requires the judge to examine the trueness of a confession by corroborating with other facts. That is, judges are not allowed to accept a confession as proof without other evidence. This Article holds that this limitation on free proof regarding confessions has its root in the Constitution and the CCP, but other types of statement evidence (such as eyewitness testimony) do not use the same standards. In regard to hearsay rules, the free proof used in deciding hearsay exceptions not only can decide the probative value but also admissibility of evidence. This Article argues that free proof should be restricted by the defendant's constitutional rights of confronting and cross-examining the witness accusing him.