大法官解釋 釋字第775號 |
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| 公佈日期：2019/2/22 |
| 解釋爭點 |
| 一、刑法第47條第1項有關累犯加重本刑部分，是否違反憲法一行為不二罰原則？又其一律加重本刑，是否違反憲法罪刑相當原則？ 二、刑法第48條前段及刑事訴訟法第477條第1項有關累犯更定其刑部分，是否違反憲法一事不再理原則？ |
| [23] United States v. Busic, 639 F.2d 940, 953 (3rd Cir. 1981), cert. denied, 452 U.S. 918 (1981). [24] U.S. v. Edmonson, 792 F.2d 1492 (9th Cir. 1986), cert. denied, 479 U.S. 1037 (1987). [25] U.S. v. Carter, 704 F.2d 1063 (9th Cir. 1983). [26] U.S. v. Kinsey, 994 F.2d 699 (9th Cir. 1993). [27] U.S. v. Kinsey, 843 F.2d 383 (9th Cir. 1988), cert. denied, 487 U.S. 1223 (1988). [28] Bozza v. United States, 330 U.S. 160 (1947). [29] United States v. Kane, 876 F.2d 734, 736-7 (9th Cir. 1989). [30] Basic Law for the Federal Republic of Germany Article 103 paragraph 3 stipulates that: ‘No person may be punished for the same act more than once under the general criminal laws.’ https://www.btg-bestellservice.de/pdf/80201000.pdf last visited: February 10, 2019. [31] The German Code of Criminal Procedure Section 359 provides that: ‘ Reopening of the proceedings concluded by a final judgment shall be admissible for the benefit of the convicted person 1. if a document produced as genuine, to his detriment, at the main hearing was false or forged; 2. if a witness or expert, when giving testimony or an opinion to the convicted person’s detriment, was guilty of willful or negligent breach of the duty imposed by the oath, or of wilfully making a false, unsworn statement; 3. if a judge or lay judge who participated in drafting the judgment was guilty of a criminal violation of his official duties in relation to the case, unless the violation was caused by the convicted person himself; 4. if a civil court judgment on which the criminal judgment is based is quashed by another final judgment; 5. if new facts or evidence were produced, which, independently or in connection with the evidence previously taken, tend to support the defendant’s acquittal or, upon application of a less severe penal norm, a lesser sentence or a fundamentally different decision on a measure of reform and prevention; 6. if the European Court of Human Rights has held that there has been a violation of the European Convention on the Protection of Human Rights and Fundamental Freedoms or of its Protocols and the judgment was based on that violation.’ https://www.gesetze-im-internet.de/englisch_stpo/englisch_stpo.html#p2085 last visited: February 10, 2019. |
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