| Summary: | 碩士 === 臺灣大學 === 法律學研究所 === 98 === In order to deal with today''s crime transforming into so many different new types, government agencies are also bound to use means of investigation different from traditional ones. "Entrapment" is one of these tactics. However, there are no articles written concerned this kind of investigative techniques, except in the Exercise of Police Powers Law, Article 3 (3), which use words such as “ temptation” or “abetting”. Therefore, this article aims to discuss first from the meaning of entrapment. And we think that the so-called entrapment’s definition should refers to: "In order to investigate crime, government agencies actively set traps, providing incentives to lure, fuelling people to commit crimes; or negatively meet the demands of people who desire to commit crimes, and then arrest those who are entraped."
Since we established the definition of entrapment, this legal concepts, then we are going to discuss if there are any written articles authorizing us to operate this kind of investigation methods. But according to our supreme court’s main opinion, it only differentiates between means of investigation legitimate or not. It doesn’t discuss of the fundamental problem, that is to say this investigation method might possibly lack the authorization basis to execute. Because “entrapment” not only violates but also intervenes "Privacy" and "Personal liberty" under constitutional protection of the fundamental right of people, it should be compulsory measures and requires written articles authorizing government to execute it. As a result, entrapment could be used to deal with crimes which are about to happen or already happened. The former might be relied on Police Exercise Law, article 28 (1) as its authorization to execute; but the latter we couldn’t find written authorization basis for it. So the last thing we could do is analogize the article about search in our Criminal Procedure Law, hence the latter won’t lack authorization basis. Finally, on the other hand, with regard to the violation or intervention of "Personal liberty" during the process of executing the entrapment technique, we could use Article 88 (1) and (2) of our Criminal Procedure Law to arrest those who are entrapped.
When the discussion goes this far here, then we can talk about the problem regarding the legitimacy of the entrapment methods which government uses. Our supreme court’s main opinion, resembling U.S. Supreme Court’s “ Subjective Approach “ inevitably inherits its drawbacks and the worst problem is that ours didn’t consider why we should accept this approach without considering other possibilities. After complex analyzing, this article adopts the “Due Process Approach” to judge the legitimacy of government’s entrapment methods. At last, this article introduces the Due Process Approach into our law system, and we could actually use it, not just a vague idea prattled.
In conclusion, to be directed against illegal entrapment methods, we should also give these “wrong” investigating methods appropriate legal effects. To this aspect, our supreme court’s opinion again has its drawbacks, too. To fix them, this article uses the “exclusionary rule of evidence” and the “fruit of the poisonous tree doctrine”,and if it comes to face the extreme cases, we use “criterions for imposing penalty” as an attempt, giving relief to those who suffered treatments from government executing illegal entrapment methods.
|
|---|
