辯護人偵查中筆記權之救濟──淺析憲法法庭111年憲判字第7號判決

The Remedy and the Defense Attorney’s Right of Taking Notes at the Stage of Criminal Investigation - Comment to Constitutional Court Judgment 111 Year Hsien-Pan-Tzi No.7Constitutional 7

憲法法庭於2022年5月27日就辯護人偵查中筆記權之救濟事件，作成憲法法庭111年憲判字第7號判決，自2016年9月間提出釋憲聲請起算，歷時約5年8個月，此為辯護人以自己名義擔任聲請人，並因此成功取得違憲宣告成果之首件案例。本文首先從辯護人偵查中筆記權之規範演進談起，接著分析辯護人偵查中筆記權之憲法基礎，以及對偵查中筆記權所為之限縮是否合憲加以檢驗，回顧本件憲法判決之歷程並評析判決內容，最後提出初步建議，以期對於檢辯互動關係之發展有所助益。簡要地說，基於有權利即有救濟之憲法原則，釋憲實務宜對辯護人受憲法保障之工作權加以積極肯認，倘該權利受有侵害，應賦予辯護人單獨救濟之機會，本案終局判決之證據評價尚不足以作為代替措施。

On May 27th 2022, the Constitutional Court rendered the judgment 111 Year Hsien-Pan-Tzi No.7 in favor of defense attorney’s right of taking notes at the stage of criminal investigation. It has been 5 years and 8 months since the case was filed in the Conference of Justices of the Judicial Yuan in September 2016. This constitutional judgment is the first case, that a defense attorney has the legal standing to being a petitioner in a constitutional case and successfully lodged a petition with the Constitutional Court for a judgment declaring the law unconstitutional. This thesis introduces the regulation development of attorney’s right of taking notes at first. The second part discusses the constitutional basis of attorney’s right and analyzes the constitutionality of relative restrictions. Then, the next part introduces the litigation history of the cause case and reviews the holding of the constitutional judgment. At the end, this thesis intends to give some preliminary suggestions to improve the interactions between defense attorneys and prosecutors. An ancient legal maxim states: where there is a right, there is a remedy. Generally, the law does not countenance a situation where a person has a legal right but no means of enforcing it. The law provides a means. Back to this constitutional judgment, for the purpose of controlling the legality and legitimacy of the restriction and prohibition orders pursuant to Article 245 Paragraph 2 of Code of Criminal Procedure, this thesis indicates that allowing the defense attorney to file a lawsuit could be considered a more suitable solution rather than using the Exclusionary Rule. Besides, this thesis suggests that the attorney’s fundamental right of work should be confirmed by constitutional court. With this fundamental right, the defense attorney may individually file a lawsuit against the restriction and prohibition made by the prosecutor or the judic ial police officer.