初探少年事件中拘提發動權限之歸屬——以偵查階段為中心

Who Is Authorized to Sign the Arrest Warrant in the Investigation for Juvenile Delinquency?

本文處理的問題是在少年事件的偵查程序中，拘票核發之權限應歸屬於何人：檢察官，抑或少年法院（庭）之法官？若認為應適用刑事訴訟法，認定檢察官為有權核發者時，可謂是將少年事件處理法視為刑事訴訟之特別法。反之，若認該權限仍屬於少年法院（庭）之法官，則適用者仍是少年事件處理法與其相關規範，背後思維是認為少年事件處理法有其不同於刑事訴訟法的內涵。換言之，本文處理之問題中，蘊含的核心疑問是少年事件法與刑事訴訟法之間的關係。對此問題，我國司法院提出「固有偵查階段理論」，主張依刑事訴訟法第228條，檢察官在少年事件偵查階段中，仍享有核發拘票之權限。本文將透過對該理論之批判，說明少年事件處理法與刑事訴訟法在規範目的上的差異，進而主張少年事件的偵查階段不應適用刑事訴訟法，故應將拘票核發權歸於少年法院（庭）之法官。

The main issue of this article is to consider who should be authorized to sign the arrest warrant during the investigation of juvenile delinquency. Traditionally, with regard to this issue, The Judicial Yuan proposes “The Essential Investigation Theory”, a theory which considers juvenile delinquent procedure as part of the criminal procedure, to apply the code of criminal procedure and authorize the prosecutor to sign the arrest warrant. However, on the other side, The Control Yuan ponders this question from a different standpoint and categorizes juvenile delinquency procedure as an intrinsically different system from the criminal procedure. That is to say, The Control Yuan asserts that the juvenile delinquent is stipulated to ensure the sound growth of juveniles, adjust their environment, and rectify their character, which is opposed to “material fact-finding”-- the normative purpose of the criminal procedure. As a result, The Control Yuan argues that only the juvenile court can sign the arrest warrant in the investigation for juvenile delinquency with authority. Due to this reason, the strategy I adopt to analyze this topic is to critically analyze “The Essential Investigation Theory” and clarify the relationship between The code of criminal procedure and juvenile delinquency act in Taiwan. In conclusion, from the perspective of ensuring the sound growth of juveniles, I argue that we should avoid the application of the criminal procedure, in which the juveniles are not regarded as “protected object ”, but as “criminal”. Therefore, I come to the conclusion that only the juvenile court should be authorized to sign the arrest warrant in the investigation of juvenile delinquency.