刀之兩刃－論我國羈押制度之立法變遷與問題

羈押之設置原爲檢察官與法官偵查審判案件時，爲打擊犯罪防止被告逃亡、勾串、湮滅證據，使訴訟程序順利完成之最重要利器。唯此一制度與無罪推定原則具有高度緊張關係，使用不當等於顛覆無罪推定原則。然臺灣過去因司法常爲威權統治用以打擊政治異己、迫害民主人權之工具，致使羈押應有之本質與功能變質與扭曲。即令在解嚴後，仍有部分司法人員之觀念與心態，並未隨之改變與調整。綜觀1987年7月以來，社會矚目之重大案件，如黑名單政治犯許信良，刑事犯前立委王令麟，乃至近日前總統陳水扁涉嫌貪污案之偵審過程，均引發朝野社會一片譁然與激烈之反應。而立法委員在同仁慘痛之實例下，則常於修法或審查預算時，利用職權反制檢察及司法機關。因之，羈押在我國實務運作與立法變遷間，常有法律專業與政治利害之杆格情事，此在歐美日之法治國家較少遇見，何以「橘逾淮爲枳」，實有探究之必要。

關鍵字

羈押；無罪推定原則；人身自由；伍澤元條款；刑事司法改革

並列摘要

The Detention of Accused in its original setting is for prosecutors and judges during the investigation or trial period of pending crime cases to prevent the accused from absconding, conspiring with a co-offender or witness, or destroying evidence. It is the most important measure for achieving the successful completion of criminal proceedings. However, this measure is often in conflict with the presumption of innocence principle. Improper practice of detention could subvert the presumption of innocence principle. In the past under the authoritarian rule, the administration of justice in Taiwan often used detention as a tool for persecuting political dissidents, which have deteriorated and distorted the nature and function of detention practice. Even after the lifting of martial law, there are still some judicial officers who have not changed or adjusted their mindset about detention practice. Traced back from July 1987 on, the criminal proceedings of some notable accused, such as the political prisoner Hsu Hsin-liang, the former legislator Wang Lin-ling, and even the former President Chen Shui-bian, who was indicted for corruption and bribery, all have caused uproar in the community and intense bickering of both the ruling and opposition parties. Furthermore, Legislators, after their colleagues were detained, often exercise their legislative power-amending laws or boycotting budget bills-to counter the prosecution and the judiciary system. Therefore, the practice of detention and the legislative change in Taiwan-i.e. amending of the Code of Criminal Procedure on detention of accused-often reflect the conflict between legal professionalism and political self-interest. This phenomenon is seldom seen in the countries with clear rules of law, such as Europe, America and Japan and warrant further study.