刑事案件具體求刑與量刑之比較研究

監察院於2012年5月對於法務部提出之糾正案，對於檢察官的具體求刑使民眾對於案件有預設有罪之判斷，同時，也與法官的量刑有極大差異。司法院也意識到量刑妥當性的重要性，於2012年12月也開啟了第三審死刑案件的量刑辯論。基此，本研究計畫參考外國法制關於刑事案件應審酌之量刑因子、證明程度及量刑結果等相關資訊，進行完整的文獻回顧，並與我國司法院目前所建立之量刑資訊參考模組進行比較性的討論。研究結果顯示，量化統計分析發現，法官對於有期徒刑之量刑並無日本七掛、八卦之說，相對的則是將檢察官求刑約打九折。至於影響檢察官具體求刑主要因素：「起訴書陳述犯罪行為人是否為是否坦承犯行」、「起訴書陳述犯罪後有無悔意」、「起訴書陳述犯罪行為人是否為共同正犯」為影響檢察官具體求刑主要因素，換言之被告若有坦承犯行、有悔意，則會影響檢察官求刑的長度，相較於無坦承犯行、無悔意者容易受到較輕的求刑；而被告在犯罪事實中擔任共同正犯的角色，相較於其他共犯，則較容易受到較重的求刑。影響法官量刑主要因素：「判決書陳述犯罪後有無自首」、「法官考量其他不利被告量刑因素（未和解、因有其他法律加重其刑、逃逸）」為影響法官量刑主要因素，換言之若被告在犯罪後有自首，相較於未自首者容易受到較輕的判決，雖然本國刑法第62條明定自首有減輕期刑之要件，但是從統計分析發現有自首所受判決長度相較於未自首者短42個月；而被告未和解、因有其他法律加重其刑、殺害直系血親、逃逸之不利於被告因素，則較容易受到較重的判決。最後，在具體的結論上，本研究團隊的立場，贊成檢察官是否應為具體求刑，然而，仍應建立一套檢察官具體求刑的基礎，將檢察官的具體求刑權明文化。以及對刑法第57條量刑事由規範更明確或針對各款因子做更詳細的論述、並將審判程序嚴格區分為認罪程序及量刑程序，且檢察官應於量刑程序時舉證其所使用之求刑因子予法官裁量，以符合正當法律程序。至於，量刑因子並建立一致的標準，研究結論認為，過於具體的「量刑指引」有可能會侵害法官的獨立審判。近期目標應是，不論是檢察官於求刑時或法官量刑時，應針對量刑事由，具體描述，則可期待，經過長時間的累積，建立適合我國的量刑標準。

關鍵字

求刑；量刑；量刑因子；參考模組；量刑辯論

並列摘要

In May 2012, the Control Yuan proposed an amendment to the Ministry of Justice, which said the prosecutor's specific request for penalty would make people prejudice the case, and it also had greatly differences from the judge's sentencing. The judicial institution recognized the importance of sentencing appropriately, so the debate of death penalty cases in the Supreme Court was held in December 2012. Based on this, this research plan takes the relevant information on the sentencing factors, the degree of proof and the sentencing results of the foreign legal system on criminal cases as a refer, and conducts a complete literature review. And also conduct a comparative discussion with the sentencing information reference module that had currently established by the judicial institution. The results of the research show that the quantitative statistical analysis found that the limited imprisonments from judge's sentencing are not as same as Japan, instead of 10% off from requested penalty by the prosecutor. As for the main factors that will affect the specific request penalty by prosecutor: ＂the indictment states whether the perpetrator is confessing whether or not the crime is committed＂, ＂the indictment states whether there is a remorse after the crime＂, and ＂the indictment states whether the perpetrator is an accomplice＂. These are the main factors affecting specific sentencing request by the prosecutor. In other words, if the accused has a confession and remorse, it will affect the length of the prosecutor's request for penalty, and they are more possible to accept a lighter sentence than no confession and remorse; and if the defendant plays the role of accomplice in the criminal facts, compared with other accomplices, it is more likely to accept heavier requested penalty. The main factors that will affect the judge's sentencing: ＂The judgment states whether there is surrender after the crime＂, ＂Judge considers other unfavorable sentencing factors to defendants＂, these are the main factor affecting the judge's sentencing. In other words, if the defendant surrender after the crime, it is more likely to accept a lighter penalty than the unconfessed person. Although Article 62 of the national criminal code is clearly stipulated that there is a requirement for mitigating the penalty, it is found from the statistical analysis that the length of the imprisonment of surrendered is less 42 months than people don't surrender. And if the defendant is not reconciled, because other laws aggravate his sentence, kill the immediate blood relatives, and escape that are unfavorable to the defendant, he is more likely to accept heavier penalty. Finally, at the concrete conclusions, the position of our research team agrees with the prosecutor should specifically ask for a sentence. However, it is still necessary to establish a basis for the prosecutor to specifically request penalty, and to make the prosecutor's right of specific request penalty expressly stipulated. Sentencing factors in Article 57 of the Criminal Code are needed to be more explicit or more detailed for each factor, and it is considered that the Judiciary Proceedings should be strictly divided into a guilty plea and a sentencing procedure. Furthermore, in order to comply with the due process of law, prosecutor should prove the punishment factors used in the sentencing procedure to the judge. As for the sentencing factor and the establishment of a consistent standard, the study concluded that ＂sentencing guidelines＂ which are too specific may infringe the judge's independent judgment. The recent goal should be that whether the prosecutor is in the process of requesting penalty or the judge is sentencing, they should aim at the criminal causes, and then describe them in detail. After a long period of accumulation, we can establish a standard for sentencing that is suitable for Taiwan.