論量刑前調查報告（含量刑鑑定）──美國量刑前調查報告及相關法制之考察

The Theory of Presentencing Report and Psychiatric or Psychological Examination: Perspectives from the United States Norm on Presentencing Report

從司法院釋字第775號解釋或過往實務見解，在在彰顯出我國量刑調查資料內容不足之問題。然而近來最高法院判決數度提到量刑前調查報告（含量刑情狀鑑定）之法制，其與量刑調查資料之關係，更有待深入之探討，以了解未來量刑調查及量刑資料間之關係。本文以此開展，從我國量刑調查資料之實務見解出發到近來最高法院量刑調查資料之「量刑前調查報告（含量刑情狀鑑定）」之討論。其後，再從美國法角度探討美國量刑前調查之量刑前調查報告，分析美國量刑目的、量刑前調查報告內容、意義、功能及揭露義務等內涵及規範。最後，分析未來我國法量刑程序中，量刑前調查報告（含量刑鑑定）之立法，作為充實我國量刑審酌資料之實質核心及規範建構。

Recently, our Constitutional and Supreme Courts have both demonstrated a lack of a norm in sentencing procedure. Furthermore, the Supreme Court has referenced presentencing reports and their connection with sentencing procedure several times in different decisions. Therefore, there is a strong need to delve into the construction of procedure of independent investigative sentencing and its core material, presentencing reports, with special attention paid to the definition, function, content, disclosure, objection and the presentencing investigation. Thusly, our article starts by analyzing independent investigative procedure and presentencing reports, the positive law and norm, as well as the practice of presentencing reports in order to draw a model for our future reform on our sentencing procedure. We will also be looking at the sentencing materials that shall be fully investigated during the procedure to fulfill the goal of rehabilitation that caters to the needs of the convicted, as well as appropriate sentencings that strike a balance between the crimes committed and punishments imposed.