打破「偵查主體」爭奪戰的迷思

關於司法警察或檢察官，誰才是偵查主體，有許多學者提出見解，然而，吾人分析後，認為此概念對於檢警權責不分並無釐清作用，警察亦不因此而免除檢察官之監督，以及檢警間衝突之減少與由誰主導偵查亦無必然關聯，因此，爭奪偵查主體並無實益。檢察官指揮司法警察，行使刑事訴訟法之職權，與權力分立原則無違，蓋檢察權之行使係行政權，而非司法權以客觀中立第三人之地位就個案論斷是非。又檢察官受到高度的身分保障，並獨立行使職權，乃特殊之行政官。關於檢察官與警察機關，就偵查事務之分配，依機關功能最適理論，涉及政治人物之案件，以及經濟、金融、商事之案件，交由檢察官為初步之偵查較妥。又為了妥善分配資源，宜賦予司法警察微罪處分權，使其具有處理特定輕罪之權限。

關鍵字

偵查主體；檢警關係；檢察獨立；權力分立；功能最適

並列摘要

Whether the police or a prosecutor plays a leading role in criminal investigation, this question has been an unsolved issue for a long time. However, I cannot figure out the purpose of such debate. A prosecutor monitors the police to prevent them from abuse of power. It is one of the original reasons that the prosecutorial system was built. In a criminal case, even though the police may play a leading role, they are not exempted from the supervision of a prosecutor. There are fewer conflicts between the prosecutors and the police in the U.S. The reason is that district attorneys are elected, they can hardly continue in office without support from police unions. A prosecutor instructs the police to exercise their powers according to The Code of Criminal Procedure. The situation does not violate the Principle of Separation of powers. Exercising prosecutorial power is administrative power, not the judiciary. However, a prosecutor’s identity is highly protected, and so is prosecutorial independence. As a consequence, he can take the right decision, without improper pressure and political interference. Taking the specialty of the prosecutor and the police into account, cases that are involved with political figures, or related to economics, finance or commerce, should be referred to the prosecutor to initiate a preliminary investigation. In order to efficiently allocate resources, it is necessary to empower the police to impose penalty upon violators of some misdemeanors.