外國羈押期間折抵的類推適用──評析最高法院109年度台抗字第1082號裁定

To Apply Foreign Detention Jail Credit by Analogy: Comment on Ruling No.1082 of the Supreme Court in 2020

我國對於外國所為的羈押期間可否折抵，實務見解以往採取「二分模式」，將羈押分為「受我國司法互助請求所為羈押」以及「非受我國司法互助請求所為羈押」的兩種情形，並且就前者認為是我國司法權行使的延伸，將外國羈押以視同的方式，擬制為我國所為的羈押，直接適用刑法第37條之2，但對於非受司法互助請求所為的羈押，則是無任何折抵的方式，而在最高法院近期的裁定之中，不同以往，提出應類推適用刑法第37條之2及跨國移交受刑人法第10條的規定，並且引用聯合國反腐敗公約以及刑事司法互助的法理，但本文認為實務見解在理由與結論上有互相矛盾的嫌疑，雖然類推適用移交法的結論是正確的，但是說理並不正確，並且在結論上不應以類推適用刑法第37條之2進行折抵，在參考德國刑法的規定，以及不同審判權間折抵的性質，應以類推適用刑法第9條的方式，並類推適用跨國移交受刑人法第10條作為規範的補充。

"The practical opinion of the courts has adopted the dichotomy mode towards the issue of whether the period of detention in the foreign countries can be jail-credited or not. The adjudicates of detention in the foreign countries had been divided into the ones that are“requested by the mutual legal assistance made by Taiwan”and the ones that are“non-requested by the mutual legal assistance made by Taiwan”. The former ones have been considered as the extension of the exercise of the judicial right of Taiwan, videlicet, the detention in the foreign countries would be constructed to the detention in Taiwan and would apply to Article 37-2 of the Criminal Code. Per contra, the detentions non-requested by the mutual Legal Assistance made by Taiwan could only jail-credit nothing. However, the Supreme Court has recently made an innovate ruling (Ruling No.1082 of the Supreme Court in 2020). The ruling mentioned that the detentions non-requested by the Legal Assistance made by Taiwan should apply Article 37-2 of the Criminal Code and Article 10 of the Transfer of the Sentenced Persons Act analogously. It also cited the convention against Corruption of the United Nation and the principals of mutual legal assistance in criminal-matters. However, this study finds the reason and the conclusion of the ruling in conflict. Although the conclusion of applying the detentions non-requested by the Legal Assistance made by Taiwan analogously to the Transfer of the Sentenced Persons Act is reasonable, the rationales are not. The conclusion of applying the detentions non-requested by the Legal Assistance made by Taiwan to Article 37-2 of Criminal Code analogously isn’t ideal, either. According to Strafgesetzbuch (the German penal code) and concerning the jurisdictions are varied, the detention should be generally applied to Article 9 of the Criminal Code by analogy and should be applied analogously to Article 10 of the Transfer of the Sentenced Persons Act as a supplement."