論我國刑事訴訟法參與人傳喚之若干疑義──兼論德國及日本法制對參與人「不自證己罪」之保障

Problems with Summons of Participants in Taiwans Criminal Procedure - A Comparison Between the German and Japanese Legal Systems

為保障沒收新制下可能受沒收影響之第三人，我國於2015 年修法時正式於刑事訴訟法第455 條之12 以下引進「沒收特別程序」（或稱第三人參與沒收）新制，並賦予「參與人」獨特的訴訟身分。惟就「參與人」是否應受不自證己罪保障，其保障程度如何之問題，立法者顯然在法規與立法說明中體系不一，並體現在參與人雖有類似被告權利，卻在沒收事項中仍可能如同證人一般遭受「法院秩序罰」制裁之不當現象。對此，本文重新參酌作為修法基礎之德國刑事訴訟法規定，並觀察日本應急措施法之類似設計，確知前述問題乃源自於我國立法者對參與人受不自證己罪保障程度之混淆，以及分別參考實際上互不相容之德國與日本法制所引發之結果，並據此就現行法提出解釋與修正之建議。

In order to protect third parties who may be affected by confiscation under the newly reformed Confiscation Act, a new framework of“Special Proceeding of Confiscation”(or third-party participation in confiscation) was introduced under Article 455-12 of the Code of Criminal Procedure in 2015, and a unique procedural status was granted to“participants”. However, as to whether and how“participants”should be protected by self-incrimination, it is clear that the legislators have been inconsistent in their statutes and legislative descriptions, and this is reflected in the inappropriateness that participants may be subject to“Court Administrative Penalty”as witnesses in confiscation matters, even though they have similar rights to defendants. In this regard, this article reexamines the German law on which the amendment is based and observes the similar design of the Japanese law. It is clear that the aforementioned problem stems from the confusion of our legislators as to how participants should be protected by self-incrimination, resulting in the legislators making reference to the German and Japanese legal systems, which are practically incompatible with each other. In this regard, it is suggested that the current law should be interpreted and amended.