以違法偵查作為量刑因子之正當化根據：一個刑罰理論的觀察

The Basis of the Justification for Making Illegal Investigations as Sentencing Factor: The Examination from the Perspective of the Punishment Theory

目前我國並無將違法偵查訂為量刑因子之明文，將減刑作為違法偵查之法律效果的判決亦不多見。但以日本為例，雖與我國同樣將證據排除法則作為違法偵查之法律效果，但已有為數不少的判決將減刑作為違法偵查之法律效果。縱然如此，違法偵查作為量刑因子的理由為何，仍有爭議。對此，本文取徑於刑罰理論的觀點，從違法偵查與刑罰間的關係出發，嘗試說明違法偵查作為量刑因子的依據。亦即，本文將取徑於溝通應報理論，將國家透過刑罰對於被告之非難，理解為國家與被告間之溝通。在此前提下，本文進一步認為作為刑罰之前提的刑事程序本身，也同樣是國家與被告之溝通行為的一部分。而以犯罪嫌疑為發動依據的偵查行為，更可被解讀為與刑罰相似，事實上帶有非難性質的溝通行為。因此，當國家進行違法偵查時，可理解為國家與被告間存在不當的溝通行為。此時，為排除違法偵查對國家與被告間之溝通所造成的不良影響，本文主張在國家透過刑罰與被告進行溝通的過程中，應限縮國家可施加非難之權限，調整其可施加的刑罰輕重，賦予違法偵查影響量刑之正當性依據。

Now, in Taiwan, there is no clause and judgment about making illegal investigation as sentencing factor. On the contrary, in Japan, though the court usually uses the exclusionary rule to deal with the illegal investigations, they also making illegal investigations as sentencing factor when they face the illegal investigation in the criminal process. But, the basis of the justification for making illegal investigations as sentencing factor is still unclear. To answer this question, I examine the answers given by the perspective of the punishment. That is to say, I will examine four contemporary theories: Positive general prevention, Special prevention (Spezialprävention), Fair play theory and communicative retributivism. Finally, I argue that communicative retributivism most adequately addresses the question. I will use the perspective of communicative retributivism to understand the punishment and the criminal process as the communication between the country and the defendant. Moreover, I argue the investigation has the same characteristic as the punishment, which both has the element of censure for the offender. Then, when country does an illegal investigation in the criminal process, I understand it as an unjust communication, and it causes an undeserved violation of a legal right to the defendant. I argue that, for removing the undue influence of this unjust communication on the communication between the country and the defendant, we must restrict the country’s competence of blaming the defendant. Thus, when the country’s authority of punishment is restricted, the country could not impose 100% quantity of punishment to the defendant. That is to say, we can reduce the sentence based on this reason. Therefore, in this article, as mentioned above, I use the perspective of communicative retributivism to make the basis of the justification for making illegal investigations as sentencing factor more clear.