毒品犯罪處遇之省思與展望─以我國緩起訴政策與美沙冬替代療法為中心

Abstract

自「肅清煙毒條例」更名為「毒品危害防制條例」後，我國對於施用毒品犯的處遇加入勒戒及強制戒治等措施，欲以醫療手法幫助毒品依賴者重回社會，然而隨著施用毒品罪再犯率及監獄超額收容的情形日趨惡化，刑事處遇的成效飽受質疑。近年來，世界各國對於施用毒品犯的處遇改變過去機構化治療及監禁的方式，而以社區處遇的治療優先，其中具有治療性及修復性司法的內涵的「問題解決法院」制度，對於施用毒品及財產犯罪的防治上成效卓著，並極具成本效益。我國亦隨國際趨勢創設「緩起訴處分搭配美沙冬替代療法」刑事新制，並於2008年通過毒品危害防制條例第二十四條作為法源基礎，但國內目前對於美沙冬替代療法的成效仍有異見，且此刑事新制在實務上已出現適用比例低及緩起訴處分撤銷率升高的情況，亟待解決。此外，國家以刑事管制施用毒品行為之正當性及合憲性，亦因美沙冬替代療法的出現備受挑戰。 本研究從國家管制施用毒品行為之正當性及合憲性著手，探討應如何設計施用毒品犯刑事處遇方式，透過文獻回顧及質性訪談方法了解我國刑事新制的成效與問題，並建議我國於政策修正時，可參考「問題解決法院」之相關作法。

After renaming the drug law of criminal law system, Taiwan’s government had implemented additional measures, such as institutionalization, force medical treatments etc., against drug addicts. The goal of the aforesaid measures is to reintegrate these drugs victims into the society as productive members. However, with the ever increasing relapse rate on substance abuse-related crimes and the over-booking on all the major penal facilities, the effectiveness of the aforesaid measures is now called into question. Recently, countries around the world are changing their treatment to drug addicts from traditional institutionalization or confinement into a more community-orientated approach: specifically establishing “Problem-Solving Court”, basing on method and doctrine of Therapeutic Jurisprudence and Restorative Justice. This court had gained tremendous success in terms of preventing drug victims from committing property-related crimes, reducing relapses on substance abuse, and is highly cost effective. Our country, in response to this development, had legislated “Suspended Prosecution with Methadone Maintain Treatment” as a new possible prosecuting measure against drug addicts. Nevertheless, on the practical front, there are still many dissenting opinions in regard to the effectiveness of Methadone Maintain Treatment, to the low implementation rate of suspended prosecution and to the increasing withdrawal rate of suspended prosecution by prosecutors remains an issue that requires a timely solution. Moreover, owing to adopt the Methadone Maintain Treatment, it had also being called into question regarding the national control over substance abuse behaviors via criminal law procedure, its validity and constitutionality. Starting from the validity and constitutionality of national control over substance abuse behaviors, this paper elaborates on designing a proper criminal procedural measure against drug addicts by reviewing previous literatures and interviewing professions in the field. Consequently, hope to gain a better understanding on the effectiveness and issues of the new criminal law system. Moreover, this paper advises our legislature to consult with “Problem-Solving Court” and its related publication as references for future policy amendment.