| Summary: | 碩士 === 國立交通大學 === 科技法律研究所碩士在職專班 === 106 === In order to solve the problem of high recidivism among sex offenders, Taiwan’s criminal sex offender mandatory treatment system, which falls under Taiwan’s criminal law and was modified in 2005 and promulgated on February 2, 2006, amended the compulsory treatment from the previous pre-term execution to the treatment of prisoners post imprisonment. It may be that if the sex offenders are still at risk of further offense after prison treatment or community treatment, they will be subject to compulsory treatment and treatment, which is until "the risk of further reoccurrence is significantly reduced". Under the old law the period was “no more than 3 years”. This no longer applies under the criminal law.
The purpose of having compulsory treatment regime, is to prevent sex offenders, who have low self-control, and a high rate of recidivism from committing similar crimes and insuring safety in the community. However, since the compulsory treatment is carried out by placing the person in a designated place, that not only restricts the inmate’s freedom but also keep them under strict supervision. This way does encroach their person freedom.
Personal liberty is such an important basic human right that is guaranteed by our constitution. In order to ensure the fundamental rights guaranteed by the constitution, and that they will not be improperly infringed upon by the state as implementing authority, in particular, the subject of the compulsory treatment which also includes those that no longer need to serve prison time, whom no more need service in the prison. Because this infringement their rights and the suffering caused by indefinite incarceration and treatment, which is similar to their prior punishment, therefor it is definitely necessary for these cases reviewed by the scrutiny of due process.
However, there is no stipulation on what procedure the courts in our country should implement to make the verdict of the compulsory treatment. So now when the court currently declares compulsory treatment, it is almost always conducted in written trial. It is hard to agree that such basic trial procedure meets the principle of due of law.
Due to the fact the due process of law is the concept of abstract uncertainty, how can we justify which procedure is more fair or constitutionally? This article attempts to interpret the standards for review of due process of law from the practice of constitutional release in the United States and Taiwan, and then use this framework to review the procedure of the trial of the current mandatory treatment. Finally, corresponding to how to construct a fair and constitutionally trial procedure to meet the due process, this article offers some forward suggestions.
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