2018年刑事程序法回顧：刑事被告憲法上防禦權的新篇章

Developments in the Law in 2018: Criminal Procedure Law

本文回顧2018年度重要的憲法解釋、立法政策與司法實務見解，分別以司法院釋字第762號解釋、刑事訴訟法第31條之1（施行）、最高法院107年度第1次刑事庭會議決議為重點。司法院釋字第762號解釋，重新確立了刑事被告受憲法保障之防禦權的內涵，對於防禦權的權利主體、範圍與行使方式，都有清楚明確的論述，令人對於被告憲法上防禦權未來進一步的發展充滿期待。然而，甫於2018年開始施行的刑事訴訟法第31條之1，對於偵查中羈押審查程序的訴訟扶助，原則上採強制辯護制度，限制被告自行辯護的防禦權行使，恐未能符合後來釋字第762解釋所確立的憲法上防禦權標準。最後，最高法院決議企圖以類推適用的方式，解決實務上分歧已久的難題：域外警詢傳聞的證據能力，但不僅在類推適用既有的傳聞例外規定上，有侵犯立法權疑慮；實際上現行傳聞例外規定的可信性要件，也難以運用在域外警詢陳述。令人擔憂未來各級法院若依據決議內容操作，結果可能更加分歧。

This article reviews developments in Taiwan's criminal procedures in 2018. Among other topics, this review covers the dynamics between: constitutional interpretation, legal policy, and the resolution made by the criminal tribunal meeting of the Highest Court (the Highest Court resolution). First, with regards to constitutional interpretation, i.e. Taiwan's constitutional court decision, Interpretation No. 762 clarifies that the right of defense is a fundamental right for and belonging to the criminal defendant. All the other mechanisms that facilitate the defense of criminal defendants, such as the assistance provided by defense lawyers, should not change the nature of the right. As a result, Article 33 of Taiwan's Code of Criminal Procedure (CCP) which was the contested issue leading to this constitutional interpretation, provided that defendants with the assistance of defense lawyers are not allowed to review evidence related to their cases, was unconstitutional. It is because even though the defendant has a defense lawyer, it is still the defendant, rather than the lawyer, who can exercise the right of defense. Second, in terms of the legal policy, the new Article 31-1 of CCP, which became effective on January 1st, 2018, allows defendants and their lawyers to review evidence when they prepare to litigate at a pre-trial detention hearing. However, the constitutionality of this Article has come to question, because the Article in principle deprives criminal defendants the right of self-representation at the pre-trial hearing. That is, criminal defendants facing this hearing are not allowed to personally defend themselves, even if they request self-representation. Instead, they must accept a lawyer appointed by the court. Following the constitutional principle expressed by the Interpretation No. 762, this new Article 31-1 may be found to be unconstitutional in the future, because the Article fails to respect defendants' right of defense as their own right, which should allow defendants to represent themselves. Third, the Highest Court resolution 107-1, which is formed to unify different perspectives on a hearsay exception—the out-of-court statement recorded by foreign police, may also be unconstitutional and infeasible. The resolution requires courts to admit this kind of out-of-court statement, as long as the statement was made under a “particularly trustworthy circumstance”. Nonetheless, the resolution may be found unconstitutional, because Taiwan's lawmakers don't expressly authorize courts to expand hearsay exceptions. The resolution may also be infeasible. It is hard to imagine how a Taiwan's court can reasonably find an out-of-court statement like this made under a “particularly trustworthy circumstance”. After all, the out-of-court statement was made abroad, and Taiwan's courts have little knowledge of the practices of foreign police, let alone whether the statement was recorded under a “particularly trustworthy circumstance”.