A Study on the Detention Hearing and Remedial Procedure: Focus on German Law

• Main Authors: Ya-Chu Yang, 楊雅筑
• Other Authors: Yu-Hsiung Lin
• Format: Others
• Language: zh-TW
• Published: 2018
• Online Access: http://ndltd.ncl.edu.tw/handle/taa422

碩士 === 國立臺灣大學 === 法律學研究所 === 106 === After the release of J.Y. Interpretation No. 392, the development of the legal detention system in Taiwan was, finally on the right track of the Principle of Judge Reserved. Unfortunately, two years later, the amendments to criminal procedural law failed to comprehensively understand the foreign legal system. Most of the amendments referred to “single articles” of the foreign law, attempting to reconstruct the detention chapter and even the relevant provisions on arrest before detention. As a result, although many provisions were claimed to follow German criminal procedural law following the amendments to the criminal procedural law in that year, there are still serious misplacements when comparing the legal detention systems of the two countries. Therefore, for the receiving country, how to avoid “over-translating” a foreign legal system and how to find a reasonable benchmark for comparison are worthy of further consideration. This paper uses this as a starting point and attempts to paint a complete picture of the German legal detention system. It contains the applications, decisions, and remedial procedures for detention, and the timeline includes the investigation and trial stages, until pre-sentencing detention. It is expected that the German detention legal system constructed in this paper can provide a feasible path for future reforms. Finally, several practical cases were selected to summarize the issues that have been widely discussed in recent years in Taiwan. In addition to clarifying the comparative law misunderstandings at the beginning of the reception, this work also draws on the spirit of the German detention legal system, in order to propose possible solutions.