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|Other Titles: ||Exclusion of Evidence in Violation of Warning: Right to Silence: A Comparative View of German Law|
Right to Silence;Warning (Belehrungspflicht);Exclusion of Evidence;Voluntariness of Confession;Good Faith Rule;Objection (Widerspruch);Protective Purpose (Schutzzweck)
|Issue Date: ||2016-05-20 16:07:21 (UTC+8)|
|Abstract: ||緘默權與不自證己罪屬於公平審判程序的核心領域，面對警察詢問，被告有權自由決定陳述或保持緘默。為促使被告知悉緘默權，我國立法者制定刑事訴訟法第九十五條第二款緘默權告知義務，訊問應告知被告有權保持緘默，無須違背自己之意思而為陳述，違反規定取得之自白，並有證據禁止效果（§§ 158之2，158之4）。然而，條文引發後續爭議，仍未獲解決。德國刑事訴訟法規定，訊問被告時應告知依法其得自由決定是否陳述（§ 136Ⅰ2 StPO），該規定與我國法相似，但德國刑訴並無針對訊問違反告知制定一般性證據禁止條款，而是由德國聯邦最高法院發展出違反告知的證據禁止結論，特別是出色的BGHSt 38, 214裁判意見。本文嘗試介紹上述裁判，盼能提供以比較法為基礎的觀察視野。|
A criminal defendant has the right to remain silent and the privilege against self-incrimination which stand in the core areas of a fair trial; that is, when an accused is questioned by the police, he is completely free to choose to answer the questions or to keep silent. So, in order to facilitate the defendant to know his rights secured by Item 2 of Article 95 of the Code of Criminal Procedure, he shall be informed of the following while questioned: he may remain silent and does not have to make a statement against his own will. In addition, any defendant’s confession obtained in violation of the provisions of this right shall not be admitted as evidence in principle (Art. 158-2, 158-4). However, there are still unresolved disputes arising from these provisions. German law has a similar provision prescribed by the Code of Criminal Procedure (Strafprozessordnung) which provides a defendant an advisement in first interrogation; namely, the law grants him the right to respond to the charges or not to make any statement on the charges (§ 136Ⅰ2 deStPO). But, unlike our provisions, a general rule of prohibiting the use of evidence as a result of interrogating an accused without a warning (Belehrungspflicht) does not exist in the German Code of Criminal Procedure. Actually, the judgments about excluding such illegally obtained evidence are made by the Federal Court of Justice (Bundesgrichtshof), especially the excellent opinion of BGHSt 38, 214 (Decision of Feb. 27, 1992). In this paper, the author will try to introduce the judgment mentioned above and provide the perspective based on comparative laws.
|Relation: ||法學評論, 120, 159-270|
|Data Type: ||article|
|Appears in Collections:||[法學評論 TSSCI] 期刊論文|
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