兩岸不予起訴制度之研究

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Title:	兩岸不予起訴制度之研究 Research on the System of Deferred Prosecution and Non-Prosecutorial Disposition Between Cross Strait
Authors:	郭庭毓
Contributors:	法律學系
Keywords:	緩起訴不起訴不予起訴起訴便宜原則附條件不起訴 Deferred Prosecution Non-Prosecutorial Disposition The Principle of Prosecutorial Discretion
Date:	2022
Issue Date:	2023-06-13 09:52:44 (UTC+8)
Abstract:	兩岸的交流日益頻繁，經濟貿易交流依存度及人民互動愈發密切，即便兩岸屬同文同種，但在兩岸已分治逾數十年的情形下，臺灣與大陸已各自發展屬於自己特色的法律制度，由於大陸是一社會主義國家，且「人治」色彩鮮明，其政府體制、法律制度乃至於社會文化皆帶有濃厚的社會主義氛圍，亦即以社會主義為中心，發展其各項規範制度，臺灣與大陸基於截然不同的政治體制、社會文化等因素影響下，臺灣與大陸的法律制度勢必也會有所不同。　　檢察官終結偵查之處分方式，在符合刑事訴訟法之規範下，除了以起訴的方式結案外，檢察官可對於案件予以不予起訴之處分，即在符合一定條件之要求下，賦予檢察官有一定的裁量權，決定給予案件不起訴或緩起訴之處分，是以兩岸之刑事訴訟制度皆是以「起訴法定原則」為主，「起訴便宜原則」為輔，不予起訴制度在法律規範下，賦予檢察官裁量權，促使原有起訴法定原則受到實質上之調整。　　本文欲說明兩岸不予起訴制度之目的及處分主體，介紹兩岸不予起訴及其救濟制度之規範，以比較之方式研究兩岸不予起訴及其救濟制度之異同，嘗試尋找臺灣可為參酌之素材，最後給予臺灣及大陸有關不予起訴制度之建議。 The exchanges between the two sides of the strait are becoming more frequent, and the dependence of economic and trade exchanges and people's interactions are becoming closer. Even though the two sides of the strait have the same language and the same species, under the situation that the two sides have been separated for more than decades, Taiwan Area and Mainland Area have each developed their own legal systems. Because Mainland Area is a socialist country, its government system, legal system, and even social culture have a strong socialist atmosphere, that is, with socialism as the center, the development of its various normative systems, Taiwan Area and Mainland Area are based on completely different Under the influence of political system, social culture and other factors, the legal systems of Taiwan Area and Mainland Area will inevitably be different. 　　In addition to conclusion of investigation by prosecution, the prosecutor can impose sanctions for Deferred Prosecution and Non-prosecutorial Disposition under the provisions of the Criminal Procedure Law. That is, the prosecutor is given the sanctions for Deferred Prosecution and Non-prosecutorial Disposition under certain conditions. A certain degree of discretionary power to decide whether or not to prosecute a case should be given sanctions for Non-prosecutorial Disposition or Deferred Prosecution. The criminal procedure system on both sides of the strait is based on the principle of legal prosecution, supplemented by the principle of prosecutorial discretion. The Deferred Prosecution and Non-prosecutorial Disposition system is under the legal norms. Empowering the prosecutor with discretionary power to make the original legal principle of prosecution be substantively adjusted. 　　This article intends to explain the purpose of the cross-strait Deferred Prosecution and Non-prosecutorial Disposition system and the subject of sanctions, introduce the norms of cross-strait Deferred Prosecution and Non-prosecutorial Disposition and its relief system, and study the similarities and differences between the cross-strait Deferred Prosecution and Non-prosecutorial Disposition and its relief systems in a comparative way, and try to find Taiwan Area as a material for consideration. , And finally gave recommendations to Taiwan Area and Mainland Area regarding the Deferred Prosecution and Non-prosecutorial Disposition system.
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