未告知罪名與無害瑕疵

Failure to disclose charges and harmlessness error

對於刑事訴訟法第95條第1項第1款，訊問被告前，必須為罪名之告知，若罪名有所變更，亦應為告知。惟若違反此等告知義務，其法律效果並非如同條項所列的第2、3款，即保持緘默與選任辯護人般，具有直接排除證據之效果。如此的區分，也使此等未告知之瑕疵，不會立即被認為於判決之影響，而常被以無害瑕疵，致無法上訴第三審。如此的司法實務之常態，顯然忽略告知罪名於被告訴訟權保障之重要性，也成為本文探討之核心。

Article 95, Paragraph 1, Clause 1 of the Criminal Procedure Code requires that the defendant be informed of the charges before questioning, and this disclosure must also be made if the charges are changed. However, violation of this obligation to disclose does not, as in Clauses 2 and 3 of the article, directly exclude evidence, as is the case with maintaining silence and appointing a defense attorney. This distinction prevents such failures from immediately impacting the verdict, often being treated as harmless defects, preventing a third-instance appeal. This common practice in judicial practice clearly overlooks the importance of disclosing charges in protecting the defendant's litigation rights, a fact that becomes the core of this article's discussion.