A Study on the Alternatives of Detention at Investigation: Focusing on the Prosecutors' Authority

• Main Authors: YANG, HAO-YUN, 楊皓勻
• Other Authors: LI, RONG-GENG
• Format: Others
• Language: zh-TW
• Published: 2019
• Online Access: http://ndltd.ncl.edu.tw/handle/4gqype

碩士 === 國立臺北大學 === 法律學系一般生組 === 107 === Because of the Judicial Yuan Interpretation No.392 that declared the prosecutor’s right of detention was unconstitutional in 1995, the Legislative Yuan amended the relevant provisions of the Code of Criminal Procedure. During the amendment process, whether the prosecutors’ right of the alternatives of detention, such as being released on bail, to the custody of another, or with a limitation on his residence, should be deleted was heatedly debated, but it was not deleted in the end. In recent years, the government has promoted judicial reform. In the judicial reform conference, several resolutions were made, including the limitation of the prosecutors’ authority of compulsory measures and the preventions of detention escape. The former focuses on the appropriateness of prosecutors’ authority of arresting and body examination, while the latter focuses on the review of the alternatives of detention, that is, preventions of detention escape, owing to the jump bail of significant financial crimes. For the realization of judicial reform, the main focus of the legislature is strengthening of the effect of alternatives of the detention, and this year, the Code of Criminal Procedure has been amended, besides the outbound restrictions, the additional also amended Article 116-2 of the Code of Criminal Procedure. However, while expanding the scope and extent of restrictions of the alternatives of the detention to strengthen effect of the preventions of detention escape, we should also pay attention to the protection of the rights of criminal defendants and to reviewing whether the imposed restrictions are excessive. The Code of Criminal Procedure in Taiwan at present is quite inadequate about the relevant norms of the alternatives of the detention. In the system of that, both the essential elements and the procedures are attached to the detention. However, the alternatives of the detention will also result in restrictions on the rights of the criminal, and there is no corresponding norm for due process. Furthermore, the appropriateness of the prosecutors’ authority of the alternatives of the detention at investigation is also questionable. In light of the above issues, this article will review the inadequacy of the relevant legal system for the alternatives of the detention and the appropriateness of the prosecutors' authority, and refer to the bail system in the United States in a hope to serve as a reference for the Taiwan law to be more complete and more appropriate to protect human rights.