法律解釋翻譯(中翻英)大法官釋憲文

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法律解釋翻譯(中翻英)大法官釋憲文

最高法院三十一年上字第二四ニ三號證判例稱「共同被告所為不利於己之供述，固得採為其他共同被告犯罪之證據，惟此項不利之供述，依刑事訴訟法第ニ百七十條第ニ項之規定，仍應調查其他必要之證據，以察其是否與事實相符，自難專憑此項供述，為其他共同被告犯罪事實之認定。」四＋六年台上字第四一九號判例稱「共同被告不利於己之陳述，固得採為其他共同被告犯罪之證據，惟此項不利之陳述，須無瑕疵可言，而就其他方面調查，又與事實相符，始得採為其他共同被告犯罪事實之認定。」其既稱共同被告不利於己之陳述得採為其他共同被告犯罪(事實認定)之證據，惟依當時有效施行之形事訴訟法第ニ百七十條第二項(按即嗣後五十六年修正公布之同法第一百五十六條第ニ項)規定，仍應調查其他必要證據等語，顯係將共同被告不利於己之陳述，虛擬為被告本人(即上開判例所稱其他共同被告)之自白，逕以該共同被告之陳述作為其他共同被告之不利證據，對其他共同被告案件而言，既不分該項陳述係於審判中或審判外所為，且否定共同被告於其他共同被告案件之證人適格，排除共同被告立於證人地位而為陳述之法定程序之適用，與當時有效施行之二十四年一月一日修正公布之形事訴訟法第ニ百七十三條規定牴觸，並已不當剝奪其他共同被告對該實具證人適格之共同被告詰問之權利，核與首開憲法意旨不符。該ニ判例及其他相同意旨之判例(如最高法院ニ十年上字第一八七五號、三十八年穗特覆字第二九號、四十七年台上字第一五七八號等)，與上開解釋意旨不符部份，應不再援用。

Shan-tzu No. 2423 Precedent made by the Supreme Court in 1942 stated, “The statement made by one of the joint-defendants against himself / herself is eligible to serve as the evidence related to the criminal facts in which other joint-defendants are involved. According to Paragraph 2, Article 270 of Criminal Procedure Code, however, the aforesaid unfavorable statement has to be investigated together with all other evidence in order to determine whether it conforms to the facts. The aforesaid statement alone shall not be construed as the sole basis on which other joint-defendants are pronounced guilty.” According to tai-shan-tzu No. 419 Precedent made in 1957, “The statement made by one of the joint-defendants against himself / herself is eligible to serve as the evidence related to the criminal facts in which other joint-defendants are involved, provided that the aforesaid statement is not construed as the sole basis on which other joint-defendants are pronounced guilty, unless the aforesaid statement is found flawless and, based on all investigations, is consistent with the facts.” Both precedents mentioned above assumed that the statement made by one of the joint-defendants against himself / herself is eligible to serve as the evidence related to the criminal facts in which other joint-defendants are involved (fact-based conviction), and assumed that, according to Paragraph 2, Article 270 of the previously effective Criminal Procedure Code (same as Paragraph 2, Article 156 of the Code as amended and promulgated in 1967), the aforesaid unfavorable statement has to be investigated together with all other evidence. In other words, both precedents had groundlessly construed the statement made by one of the joint-defendants against himself / herself as a confession made by the defendants themselves (i.e. the other joint-defendants mentioned in both precedents), and construed the statement made by one of the joint- defendants against himself / herself as the evidence against other joint-defendants. For other joint-defendants, both precedents were not only unable to differentiate a statement made in the court from a statement made outside the court, but also denied a joint-defendant’s statutory qualification of witness in the trial for other joint-defendants, thus excluding the due process in which a joint-defendant may elect to act as a witness. Both precedents are therefore in breach of the requirements stated in Article 273 of the Criminal Procedure Code amended and promulgated on January 1, 1935 and unjustly reprieve other joint-defendants of the right to cross-examine the joint-defendant who has the statutory qualification of witness. Apparently, both precedents are inconsistent with the constitutional intent stated above. Therefore, both precedents and all other precedents having same virtualization and assumptions (e.g. shn-tzu No. 1875 Precedent made in 1931, hue-te-hu-tzu No. 29 Precedent made in 1949, and tai-shan-tzu No. 1578 Precedent made in 1958 by Supreme Court) do not conform to the intent stated above and shall cease to be quoted and applied.