初探跨境案件之境外羈押折抵刑期（上）──以最高法院裁判為中心

The Deduction Policies of Overseas Detention Period: Focus on the Judgments of Supreme Court

犯罪行為人犯罪後或經判決有罪宣告後遣逃出境，透過國際刑事合作或經由《海峽兩岸共同打擊犯罪及司法互助協議》管道而緝捕到案後，無論是藉由引渡、人員遣返或者驅逐出境等方式移交回我國，日後倘受我國法院為有罪判決或者入監服刑，均會發生該員在外國遭到羈押或人身自由遭到拘束之期間，能否折抵刑期之議題。目前就境外羈押或人身自由遭拘束之期間能否折抵刑期，最高法院分別有一○一年度台抗字第一○五八號、一○四年度台抗字第四號刑事裁定提出相關見解，惟實務上容未有一致之標準，而有探討之價值。本文先區分引渡、移民驅逐及刑事執行驅逐之態樣，繼之再探討國際規範及立法例，最後再提出我國最高法院上開二則實務見解加以分析歸納，研究發爭議；然倘藉由移民措施移交回國者其境外遭到拘束自由之期間則因本案羈押認定困難，難以折抵。惟後者情形則因我國實務國際合作態樣之多元，容易發生人權保障疑慮。

As criminals flee abroad after committing crimes or being convicted, there are many effective practices of international cooperation in criminal matters regarding overseas arrest modes, proposing the most formal extradition request (by requesting state), expelling or repatriating via immigration measures (of the requested state), or even arresting criminals without the other country’s consent, etc.. All these efforts are to return these criminals back to the country which has the jurisdiction over the crimes to pursue prosecution, trial or execution of sentences against these criminals. No matter returning the criminals to the requesting country via extradition or deportation, while handing over the perpetrators, the freedom of the perpetrators was therefore constrained. Consequently whether the terms of overseas detention or constrain can be deducted from their subsequent imprisonment causes controversial human right issues along with international cooperation. The Court has not yet delivered consistent opinions, so the need for further academic research therefore presents. This paper first tries to define various international cooperation methods such as extradition, expulsion and deportation and probes their legal features. As the deduction policies of overseas detention period, this paper explores several international regulations and legislations regarding this issue and finally, analyzes recent opinions regarding international immigration cooperation and cross-strait mutual legal assistance delivered by the Supreme Court in 2012 and 2015 respectively. Therefore, expecting this research on overseas detention issue will be the first step for further study.