摘要
In recent years, the problem of entrapment defense has become an important issue crossing legal systems and national boundaries. This article starts from the discussion about the scope of entrapment defense, and analyses four levels of examination in cases. At first, we have to examine the question whether the conduct at issue involves any kind of ”instigation” or ”provocation”. Then we have to distinguish entrapment ”by government agents” (law enforcement officers or their agents) from other cases. If the accused is induced or persuaded by government agents to commit the crime, the third level of examination would be important: whether the entrapment at issue can attain to the degree of ”violation of law”. However, the crucial question for a final judgement is what kind of ”legal consequences” in cases caused by illegal entrapment of government agents. With regard to legal effects, this article analyses doctrines and judgements of some selected countries and decisions of the European Court of Human Rights. For discussion, these relevant opinions are divided into two dimensions-substantive and procedural law. After a detailed review of all the theories, this paper comes to the conclusion that the approach of ”personal cause for exclusion of punishment” based on preventive perspective is the best and the most adequate choice for our country.
並列摘要
In recent years, the problem of entrapment defense has become an important issue crossing legal systems and national boundaries. This article starts from the discussion about the scope of entrapment defense, and analyses four levels of examination in cases. At first, we have to examine the question whether the conduct at issue involves any kind of ”instigation” or ”provocation”. Then we have to distinguish entrapment ”by government agents” (law enforcement officers or their agents) from other cases. If the accused is induced or persuaded by government agents to commit the crime, the third level of examination would be important: whether the entrapment at issue can attain to the degree of ”violation of law”. However, the crucial question for a final judgement is what kind of ”legal consequences” in cases caused by illegal entrapment of government agents. With regard to legal effects, this article analyses doctrines and judgements of some selected countries and decisions of the European Court of Human Rights. For discussion, these relevant opinions are divided into two dimensions-substantive and procedural law. After a detailed review of all the theories, this paper comes to the conclusion that the approach of ”personal cause for exclusion of punishment” based on preventive perspective is the best and the most adequate choice for our country.