搜索律師事務所的程序保障及扣押禁止──評析憲法法庭112年憲判字第9號判決

Procedural Safeguards and the Prohibi t ion of Seizure in Searches of Law Offices - A Commentary on Taiwan Constitutional Court Judgment 112-Hsien-Pan-9 (2023)

在我國，為維護律師與其客戶間的特殊信賴關係，明定律師對業務上所知悉之秘密負有保守義務，亦規定違反該義務者須負刑事責任，並賦予律師與辯護人因業務所知悉他人秘密事項之拒絕證言權。然而，現行法並未進一步就得主張拒絕證言權者之文件或資料設置相應的搜索與扣押限制，亦未明定律師、辯護人得享有禁止搜索、扣押其業務文書之特權。直至憲法法庭於112年憲判字第9號判決作成，始正面回應此一問題。該判決確認，國家若未排除辯護人與被告、犯罪嫌疑人或潛在犯罪嫌疑人間行使秘密自由溝通權所產生之文件資料而為搜索、扣押，即屬違憲；並同時指出，現行規定於合憲性解釋下仍可維持。此判決雖具里程碑意義，然仍存若干未盡之處，亟待進一步檢討與反思。本文以該判決為分析核心，從其所揭示之基本權保障出發，探討在維護律師職業功能與刑事偵查公權力之間如何取得平衡，並評估現行法制是否足以提供完整的程序保障。

In Taiwan, to preserve the special relationship of trust between lawyers and their clients, lawyers are obligated to maintain the confidentiality of information obtained in the course of their professional duties, and a breach of this obligation entails criminal liability. They are also entitled to refuse testimony regarding confidential matters learned in the course of their practice. However, existing law does not provide corresponding restrictions on the search and seizure of documents or data held by persons entitled to claim this right, nor does it recognize any privilege protecting lawyers’or defense counsel’s case-related files from such investigative measures. It was not until the Constitutional Court rendered Judgment No. 112-Hsien-Pan-9 (2023) that this issue was directly addressed. The Court held that state authorities would violate the Constitution if they conducted searches or seizures of materials arising from the exercise of the right to confidential communication between defense counsel and the accused, suspects, or potential suspects, while at the same time finding that the current procedural framework could remain in force under a conditionally constitutional interpretation. Although this judgment marks a milestone in affirming the constitutional protection of lawyers’professional functions and the right to confidential communication, several unresolved issues remain. This article takes the judgment as its analytical core, exploring how to maintain a proper balance between protecting the professional role of lawyers and ensuring the exercise of investigative powers, while assessing whether the existing legal framework provides adequate procedural safeguards.