Practical Applications and Developments of the Theory of Balancing in Criminal Procedure in Taiwan.

• Main Authors: WU, WUN-JHIH, 吳文志
• Other Authors: YUN, CHUN-LIANG
• Format: Others
• Language: zh-TW
• Published: 2019
• Online Access: http://ndltd.ncl.edu.tw/handle/a2ga7x

碩士 === 國立雲林科技大學 === 科技法律研究所 === 107 === In 2003, the Code of Criminal Procedure in Taiwan matched the changes in the trial principles of the reformed adversarial system. This reform adopted strict evidentiary rules, exclusionary rule, hearsay rule, implemented and strengthened cross-examination requirements, emphasizing the formal equality of the parties, and relegating the court to the role of hearing. In case of necessity it can actively get involved in the investigation. In 2004, Supreme Court re-emphasized the theory of balancing in the exclusionary rule in the judicial precedent No. 664. Judging whether the evidence obtained illegally has evidentiary effect, the exclusionary rule (also called prohibition of evidence) has different views in different countries. The German practice biases the theory of balancing, considers the degree of violation of procedures, the severity of crimes, the importance of evidence, etc., and comprehensively judges whether the use of evidence is prohibited. In the U.S., the exclusionary rule is supplemented by the fourth amendment of the American constitution and other legal contents. Except in exceptional circumstances, evidence obtained by unlawful means should be excluded. Influenced by the American system concerning the exclusionary rule, Japan denied the admissibility to collect evidence in violation of the law, and there are absolute exclusions and relative exclusions in the course of development. The present study reviews the relevant literature. Article 158-4 of the Taiwanese Code of Criminal Procedure (theory of balancing), is generally operated on the legislative grounds of the afore-mentioned article or the requirements set out in the judicial precedent No. 664 of the Supreme Court in 2004, i.e. the violation of the statutory procedures, subjective intentions in violation of legal procedures, the types and severity of violations of the rights of criminal suspects or defendants, the danger or harm caused by crimes, the prohibition of the use of such evidence for the prevention of illegal investigations by investigative agencies, the inevitability of the evidence found by the investigating agency, the extent to which the illegally obtained evidence is not beneficial to the defense of the defendant. In theory, we propose a three-stage review and determine the nature of Article 158-4 platform. However, from a pragmatic point of view, except for automatic exclusion evidence (such as unjust interrogation methods or circumvention instigation), in the review of evidence obtained illegally, it seems that the importance of the case and the possibility of the evidence being annihilated or removed are more relevant, but this bias has conflicts with the defendants rights protection. Therefore, Article 158-4 of the Criminal Procedural Code still needs to be supplemented in terms of methods or evaluation conditions, so that the protection of the rights of the defendant is more complete.