|其他題名: ||A study on the democratic control of the deferred prosecution system|
|作者: ||楊詔凱;Yang, Zhao-Kai|
陳銘祥;Chen, Ming-Siang;羅承宗;Lo, Cheng-Chung
|關鍵詞: ||財政民主主義;財政議會主義;政府預算;緩起訴處分金;檢察官;Principle of Democratic Governance of Finance;Parliamentary Control of Finance;Governmental Budget;Subscribed Fine of Deferred Prosecution;prosecutor|
|上傳時間: ||2015-05-01 16:11:58 (UTC+8)|
It is the purpose of a nation to achieve sustainable development. Therefore, all governmental decisions should be supported with sufficient financial resources. The role of the government increases as public expenditure expands. Hence, there is an emergent need for a comprehensive normative structure to regulate governmental financial income, management, operation and expenditure. The budgetary legal system should provide a legal basis for the government’s financial activities and ensure that all governmental income taken from the people is used for the people. In order to comply with the constitutional principle of democratic governance of public finance, all government income and expenditure must be reviewed and approved by a parliament composed of representatives elected directly by the people.
However, as the means for government to acquire financial income have become more diversified, legal research regarding financial resources other than taxes and levies is lacking. The subscribed fine of deferred prosecutions is one of the financial resources that has not received enough academic attention.
In February 8, 2002, the deferred prosecution system was amended into the Criminal Prosecution Law in Taiwan. After scrutinizing academic research, communiques of the Legislative Yuan, and reports from relevant agencies, I discovered that there are many deficiencies and malpractices within the operation of the system. I propose some recommendations to make the operation of the system comply with the principle of democratic governance of finance and to fulfill the legislative intent of the deferred prosecution system.
In this paper I offer two proposals for reforming the subscribed fine of deferred prosecutions system: The best solution is to turn over all fines to the state treasury completely. Therefore, the income can be appropriated through a representative assembly in accordance with budgetary approval procedures, ensuring the legitimacy of its use. The second best solution is to enhance the linkage between the Subscribed Fine of Deferred Prosecution and the General Public’s Oversight. I propose that a supervisory committee be formed as a middle course. Local governments and congress should have the right to recommend experts or scholars to become members of the committee. Through this method, we can enhance the democratic legitimacy of the committee and preserve the functions purported by the legislative intent when enacting the amendment. I believe this method can ensure that prosecutors determine the use of subscribed fines appropriately with democratic legitimacy. This can further enhance the transparency of the system and maximize its utility. The legislative intent of the deferred prosecution system can thus be fulfilled.