刑法監護處分制度之修正芻議──取徑德國、奧地利與瑞士刑法

Initial Opinions on Potential Changes in Custodial Protection under the Criminal Code

刑事監護處分旨在將行為時因精神障礙或心智缺陷致使其責任能力喪失或顯著降低，但仍有再犯危險性以及有危害公共安全之虞的不法行為人，強制收容於精神病院或其他相當處所，施以治療或矯正處遇，以消除其再犯危險性以及社會危險性，俾維社會安全。因刑事監護之性質為拘束人身自由之保安處分，其發動要件以及決定程序，須恪遵比例原則以及正當法律程序原則，始符憲法第8條保障人身自由之旨。問題是，現行刑法第87條未將發動刑事監護處分之要件的原因犯罪行為及行為人可能再犯之犯罪行為限於重大之犯罪或最重本刑一年以下有期徒刑、拘役或罰金以外之犯罪，亦未限定具有再犯危險性之行為人必須同時具有危害公共安全之虞，致使僅犯輕微犯罪以及雖有再犯危險性但無危害公共安全之虞的精神障礙行為人，可能遭受監護處分之宣告而被長期剝奪人身自由，有違比例原則；其次，現制之刑事監護處分限制處分期間為五年，將使最長處分期間屆至後，仍具再犯危險性之行為人，不得不回歸社會，造成社會安全的可能破口，違反刑事監護處分制度旨為防護社會安全之目的，應予適正修正。本文建議參酌德、奧、瑞等國刑法規定，修正現行刑事監護處分期間之限制，將之改為不定期處分，同時限制發動監護處分之原因行為與再犯行為於一年以下有期徒刑、拘役或罰金以外之犯罪，並加重法官之審查義務，以及賦予受處分人相當的程序保障，俾使刑事監護處分得以實現防衛社會之目的，同時符合憲法比例原則以及正當法律程序原則之要求。

A person is not responsible for criminal conduct if at the time of such conduct as a result of mental disorder(s) or impairment to the extent which the person's criminal responsibility can be excused or diminished. While the offense is not punishable, the provision on custodial protection under the Criminal Code allows judicial authorities to detain the person in psychiatric hospitals or other comparable institutions for medical treatment or correctional treatment, provided that evidence is sufficient to prove that the person is likely to reoffend and his behavior may result in risk to public safety. The purpose of the provision is to minimize risk of reoffending and ensure safety society. As the nature of custodial protection is a protective measure that imposes restrictions on personal freedom, its legal requirements and decision-making process are required to comply strictly with the rules of proportionality and due process, which are encapsulated in the legislative purpose of Article 8 of the Constitution. As a result, the following issues in relation to current provision on custodial protection need to be discussed: Article 87 of the Criminal Code does not specify that custodial protection will be only established when the first offense and the reoffending both are considered as major crimes. In addition, under the Article 87, a verdict with disposition of custodial protection can be made solely based on the likelihood of reoffending or risk to public safety. The current provision may lead to a consequence, in which the person with mental impairment can be deprived of his person freedom for a long period even if he commits a minor crime, or he is likely to commit again an offense without risk to public safety. Such consequences may violate the rule of proportionality. Furthermore, the maximum length of current custodial protection is five years. After the maximum period expires, the person who is likely to reoffend has to be released and returns to society. Where appropriate, such length requirements needs to be amended as it may increase potential risk in society, which is inconsistent with the purpose of ensuring public safety and security subject to the custodial protection regime. Initial opinions have been developed in this study, which include: 1. The competent authority may consider criminal laws in Germany, Austria and Switzerland, and adopt non-fixed terms to replace the maximum period of custodial protection; 2. Custodial protection will be only established when the first offense and the reoffending both are considered as major crimes. Criminal courts are obligated to review custodial protection in a more cautious manner, and ensure the defendant's due process rights during proceedings. Doing so enables establishment of custodial protection to fulfill its purpose of safeguarding the society, and to comply with the constitutional rules of proportionality and due process.