命被告退庭行隔別訊問之缺席審判──探究刑事訴訟法第一六九條的失落法理

The Ex Parte Verdict That Order the Defendant to Leave the Court and Examine Separately–Study on the Lost Theory of Article 169 of the Code of Criminal Procedure

刑事訴訟法第一六九條規定，自清末民初繼受法時期以來，法理早已失傳。本文將追本溯源至繼受時期的條文及史料，對照比較法及法制史，指出命被告退庭行隔別訊問，定性上就是一種禁止被告缺席審判原則的法定容許例外，第一六九條即是第二八一條第一項所稱的特別規定，因此，違反者亦可能構成第三七九條第六款所稱違法缺席審判之判決當然違背法令。二○○三年修法時，修法理由偏離聽審權、在場權之主軸，反而將其導向對質詰問，進而影響後續實務發展，值得商榷。

The theory of article 169 of The Code of Criminal Procedure has been lost since it was adopted by the law in the late Qin and early Republic. This article traces back to the articles and historical material of the adopted period and compares them with comparative law and history of legal systems, noting that ordering the defendant to leave the court and examining separately is an exception permitted by law of the principle that prohibits the ex parte verdict. Article 169 of The Code of Criminal Procedure is the so-called specially provided in paragraph 1, article 281. Therefore, those who violate this article may also constitute unlawful trial without the presence of the defendant, which is on its face contrary to law, according to subparagraph 6, article 379. In the amendment in 2003, the reason of the amendment deviated from the right to be heard and the right to be present, however it was led to the Confrontation and further affected following development of the judicial opinions. This is still open to discussion.