A Study on the Rules of the Pretrial Detention in Taiwan and Mainland China through the Norms of the Human Rights Protection

• Main Authors: HSU,JUI-YUAN, 許睿元
• Other Authors: 余振華
• Format: Others
• Language: zh-TW
• Published: 2016
• Online Access: http://ndltd.ncl.edu.tw/handle/63499293447945338240

博士 === 輔仁大學 === 法律學系 === 104 === For the purpose of the preservation of the accused as well as the preservation of evidence, the Code of Criminal Procedure provides a variety of mandatory sanctions. Among various mandatory sanctions, pretrial detention is nothing more than the most serious intervention in liberty. And to some extent, the accused suffered more pain and a higher degree of harshness in pretrial detention than in imprisonment, criminal detention, etc. With regard to deciding whether the defendant should be in custody when the judgment has not been determined, it only needs to be approved by a judge after he or she questions the accused and then decides that the situation of the accused complies with the requirements of Article 101, paragraph 1 or Article 101-1, paragraph 1 on the Code of Criminal Procedure. For pretrial detention, such a punishment that results in severe liberty intervention, is the way to regulate it on the Code of Criminal Procedure appropriate? Are the constituents of the requirements of the pretrial detention specific and clear enough? How can we apply those requirements of detention in judicial practice? These issues are necessary to be studied in depth. In comparison to the American law in which “bail” is regarded as the right of the accused, the law in our country does not take it for granted. So is “bail” the right of the accused on the law of our country? Is “bail,” as for its position, merely an alternative measure of pretrial detention or is there an “exception to the principle” relationship between them? What are the recent legislative trends in other countries also belonging to Continental law system? All of these issues are necessary to be clarified and to be explored. In addition, in modern international law, international human rights law is a field that calls on people’s attention. Besides the United Nations, regional protection mechanisms of human rights are also established in Europe, the America, and Africa. United Nations’ “International Covenant on Civil and Political Rights” and “International Covenant on Economic, Social and Cultural Rights” have been approved by the Legislative Yuan in our country. On the same day, “the Enforcement Law of International Covenant on Civil and Political Rights and International Covenant on Economic and Social and Cultural Rights” is legislated by the Legislative Yuan. By this law, these two conventions have become domestic laws. Are there any contradictions between the provisions of the current Code of Criminal Procedure in our country regarding the protection of personal liberty of criminal defendants and those structures and procedures regulated under the international human rights laws? Could we find a legislation frame that fits the situation of our country and complies with the above-mentioned framework of international human rights covenants by ways of induction, deduction and analysis? Based on these purposes, first, the dissertation is intended to use the international conventions as the warp and the domestic legislation of the major countries in the world as the weft, trying to weave a set of international judicial guidelines regarding criminal defendants’ personal freedom. Second, the dissertation tries to compare the legal systems of custody in Taiwan with those of Mainland China and to find out whether or not those systems keep up with the international trends. Finally, for future reference to amending the law, the paper concludes with recommendations for amendments of pretrial detention on both sides.