自訴存廢的十字路口──規範目的與實證研究的考察路徑

Controversies Over the Existence of Private Prosecution: Purposes of Legal Norms and Approaches for Empirical Research

我國刑事訴訟以國家訴追主義優先，並輔以自訴制度，此種設計模式向來被認為可以防止檢察官濫權不起訴，亦可達到保護犯罪被害人之目的。惟我國之自訴運作向來頗受批評，即便目前改採強制律師代理制，於二○一七年的司法改革國是會議中仍舊引發存廢之論。本文隨機抽取臺北地方法院計347件自訴判決，包含699名被告，發現改採強制律師代理制後，被告的有罪率反而由修法前的5.6％下降至1.9％；修法後有76.6％的被告獲得不受理判決，理由以未委任律師與該案不得提起自訴為大宗，足見自訴人不願遵循現有規範，應是成效低迷的主因。在預防濫訴且兼顧犯罪被害人權益的前提下，刑事訴訟有償制可提高訴訟成本，使自訴改採付費有償制，應屬變動幅度最小的修法途徑，值得吾人加以考量。

In Taiwan, state prosecution overrides and co-exists with private prosecution when it comes to criminal proceedings. Such system design has been considered to contribute to prosecutors’ restrained rights to prosecution as well as better protection of victims suffered from crimes. However, a bombard of criticism has been raised against the operations of private prosecution even though mandatory legal representation system is adopted at the moment. This system further brought about debates over its abolition or existence in the 2017 National Conference on Judicial Reform. In this study, a total of 347 judicial decisions on private prosecution filed to Taipei District Court were randomly sampled. Among these cases, 699 defendants were included. It is found that the guilty rate of the defendants decreased from 5.6% (obtained before the amendment) to 1.9% (obtained after mandatory legal representation system was put into effect). Following the amendment,’’being without legal representation’’ and ’’private prosecution not accepted’’ were the major causes for a dismissal judgment received by 76.6% of the defendants. These figures explain that the dominant reason leading to the ineffectiveness of the amendment is the private prosecutors’ failure to obey the existing regulations. Under the premise of preventing vexatious litigation and protecting crime victims’ rights, the non-gratuitous principle in criminal procedure can be referred to. Increased litigation costs and adoption of the non-gratuitous principle for private prosecution are worth being taken into consideration as it is the most effective way to achieve minimized amendment.