禁戒處分之檢視及思辨

Review and Reflection on Compulsory Treatment

禁戒處分係依法律規定拘束他人身體自由而收禁於一定之處所，且必須現實的置於公權力拘束之下之保安處分，屬於替代或補充刑事制裁之一種法律效果。從現行刑法第88條、第89條可知，禁戒處分依適用對象區分，具有二種型態，分別為：一、施用毒品成癮者之禁戒處分；二、酗酒而犯罪，足認其已酗酒成癮並有再犯之虞者之禁戒處分。二種禁戒處分在目前刑事立法政策上，均有瑕隙而有待精進空間，在保安處分所欲達成之刑事立法目的上，也有一定不可動搖的歷史性重要意義。本文從近年保安處分修正趨勢檢視禁戒處分法制，建議應邁向全面中間性制裁化，重視社區禁戒之立法設計，發揮公私協力之「訴源治理」效能，同時擷取監護處分及強制治療之立法優勢，周延禁戒治療評估基準及機制，並放寬禁戒處分之適用範圍，未來則不排除禁戒處分與監護處分、強制治療等具治療性質之保安處分，三合一修正為「治療處分」之可能，促其有助於立法經濟及刑事政策上資源整合等整體目標之提升。

Compulsory treatment is a rehabilitative measure that restricts the physical freedom of others in accordance with the law and confines them to a fixed location and must be placed under the constraints of public power. It is a legal effect that replaces or supplements criminal sanctions. It can be seen from Articles 88 and 89 of the Criminal Law that compulsory treatment has two types according to the applicable objects. They are: 1. Any person addicted to compulsory treatment of drugs; 2. If a person commits an offense while intoxicated, he may be committed to a suitable establishment for compulsory treatment if there is reason sufficient to believe that he is addicted to alcohol and he is in the danger of committing the offense again. These two types of prohibitive punishments have f laws in the current criminal legislation and policies and need to be revised. In terms of the criminal legislative purpose that rehabilitative measures want to achieve, they also have important and unshakable historical significance. This article examines the legal system of compulsory treatment based on the revision trend of rehabilitative measures in recent years. It is suggested here that compulsory treatment should move towards comprehensive intermediate sanctions. It should not only pay attention to the legislative design of community compulsory treatment, but also give full play to the effectiveness of“case source management”through public-private collaboration. At the same time, compulsory treatment should capture the legislative advantages of custodial protection and compulsory cure, strengthen the evaluation mechanism of treatment, and relax the scope of application of compulsory treatment. This article believes that in the future, the possibility of compulsory treatment, custodial protection and compulsory cure being revised to“therapeutic measures”will not be ruled out, which will help save judicial costs and improve resource integration goals.