| Summary: | 碩士 === 靜宜大學 === 法律學系 === 107 === Starting with the evolution of prosecutor's prosecution discretion, the paper focuses on the extension of the relevant controversy over the judicial relief system of non-prosecutorial disposition in Taiwan. It conducts a comparative law research on the legislative examples of Japan and the United States, and then proposes the opinion on allowing citizens to supervise prosecutorial power.
The amendment of the deferred prosecution system in 2002 has expanded the power of prosecutors in prosecution discretion; however, there is no regulation on prosecution. This paper suggests the Ministry of Justice develop the criteria of prosecution to abide the unified prosecutorial system.
Through the literature analysis, it is considered that the prosecutors ought to seek the concurrence from the court when they make deferred prosecution with ordering defendants to do additional burdens.
In addition, from the viewpoint of separation of powers claiming only the court is entitled to make punishable decisions, namely that a non-binding decision of prosecution itself only suggests the court to convict.
In practice, the prosecutor suspends the investigation process by means of administrative closure, which is a violation of jurisprudence. Consequently, this paper advocates that the prosecutor can only end the investigation by “prosecution”, “non-prosecutorial disposition”, and “deferred prosecution”.
Reconsideration and setting for trial in the Code of Criminal Procedure, developed to prevent prosecutors abusing discretion, provide relief and supervision to non-prosecutorial disposition made by prosecutors.
However, there are many controversies over the practical operation of reconsideration and setting for trial. Some suggestions are provided in this paper. This paper suggests the current reconsideration should extend the recognition scope of petitioner, abolish ex officio send the ruling for reconsideration, and be defined as a judicial relief. Based on the principle of equality of arms, the prosecutor should inform the defendant and the defense attorney of the reasons for the reconsideration, protecting defendant’s right during criminal proceedings.
As regards setting for trial, mandatorily delegated by lawyer as usual, the recognition scope of petitioner should be extended in order to solve the controversy of the cases without complainants not being applicable for setting for trial. Application of setting for trial is supposed to be accepted by High Court, avoiding violating the principle of accusation.
Before High Court makes a final ruling, the court shall summon the defendant to appear in court, ensuring his or her right to be heard or hearing. Besides, whether to be sent to setting for trial depends on whether the case meets the threshold for prosecution or not. Therefore, judges of High Court can collect or investigate the evidence by inquisitorial investigation or accepting appealing case to continue the investigation, but they cannot order prosecutors to do it. After the case is decided to be setting for trial, it would be conducted in the proceedings of a private prosecution.
Additionally, the application for setting the case for trial may be withdrawn prior to the court ruling is made. Whether the application can be withdrawn depends on the genre of the case. In a case chargeable only upon complaint or request, the petitioner is allowed to request the cancellation of petition. On the other hand, the petitioner is not allowed to do so in a case of public prosecution.
However, in terms of jurisprudence, the court shall not supervise the cases where a disposition of deferred prosecution is issued. Moreover, even if the acceptance of setting for trial is transferred to High Court, it is difficult to say that setting for trial is not violating the principle of accusation.
After comparing the legislative examples of Japan and the United States, adopting people as lay judges in the system of setting for trial and working with professional judges to review non-prosecutorial disposition made by prosecutors might be workable.
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