法治國家警察權行使之正當程序－以我國臨檢與舉發交通違規為例
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2022
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我國身為東亞地區四個自由主義式民主國家之一，國家治理重視法治乃自然之理，警察執勤尤應如此。正當法律程序作為法治國家之重要原則，已為多數民主國家所遵循，在我國同樣已是一項重要的法律原則。然而，我國憲法並沒有正當法律程序之用語，僅於憲法第8條第1項提到「依法定程序」，係經由我國大法官多年努力，將西方之正當法律程序概念引進，並推展適用至其他基本權。警察執法最常見的工作為臨檢與舉發交通違規，其中臨檢行為曾由大法官釋字535號解釋認定影響人民基本權益重大，須透過法律訂定相關規定，包含實施要件、程序及救濟方式等。而舉發交通違規同樣地影響人民權益，執法方式與臨檢相似，均係由發現、攔查、執法至放行等系列行為組成。本研究目的在於檢視現行有關警察臨檢及舉發交通違規之執法方式及相關法令，是否符合正當法律程序之規範。本研究首先分析正當法律程序在我國之學理基礎及大法官解釋有關正當法律程序之解釋脈絡，接著分析警察臨檢與舉發交通違規之法令規定是否符合正當法律程序規範，並以兩則實際案例之訴願決定及法院判決，評析警察執法作為是否合乎正當法律程序規範，最後提出結論與建議供有關機關參考。本研究顯示，目前我國警察臨檢及舉發交通違規之規範，尚符合正當法律程序原則。
As one of the four liberal democracies in East Asia, Taiwan needs to abide by the rule of law in national governance, especially when the policemen are on duty. As a fundamental principle of the rule of law country, due process of law has been followed by most democratic countries, and it is also an essential legal principle in Taiwan. However, the Republic of China Constitution does not have the term"due process of law" in text. It only refers to "according to legal procedures" in Article 8(1). After years of hard work by the Justices of the Constitutional court, the western concept of due process was introduced and applied to other fundamental rights. The most common work of the police is to conduct spot checks and report traffic violations. Conducting spot checks violates the fundamental rights and interests of the people seriously, which have been clarified by the Judicial InterpretationNo. 535. The very Interpretation also declares that regulations of spot checks must be formulated by law, including implementation requirements, procedures, and remedies. Reporting traffic violations also infringes on people's rights and interests. The traffic violation events enforcement procedure is similar to spot checks, which consist of a series of behaviors such as detection, pullover, law enforcement, and release. The purpose of this study is to examine whether the current law enforcement methods and related laws regarding police spot checks and traffic violation events enforcement comply with the norms of due process of law. This thesis firstly analyzes the theoretical basis of due process of law in Taiwanand the context of the Judicial Interpretation of the Constitutional court about due process of law. Then examining whether the laws and regulations on police spot checks and traffic violations events enforcement comply with the norms of due process of law. Based on the appeal decisions and court judgments of two cases, this thesis evaluates whether the police's law enforcement actions in these cases conform to the norms of due process of law and finally puts forward conclusions and recommendations for authorities. In conclusion, the current laws of police spot checks and traffic violation events enforcement are in line with the principle of due process of law.
As one of the four liberal democracies in East Asia, Taiwan needs to abide by the rule of law in national governance, especially when the policemen are on duty. As a fundamental principle of the rule of law country, due process of law has been followed by most democratic countries, and it is also an essential legal principle in Taiwan. However, the Republic of China Constitution does not have the term"due process of law" in text. It only refers to "according to legal procedures" in Article 8(1). After years of hard work by the Justices of the Constitutional court, the western concept of due process was introduced and applied to other fundamental rights. The most common work of the police is to conduct spot checks and report traffic violations. Conducting spot checks violates the fundamental rights and interests of the people seriously, which have been clarified by the Judicial InterpretationNo. 535. The very Interpretation also declares that regulations of spot checks must be formulated by law, including implementation requirements, procedures, and remedies. Reporting traffic violations also infringes on people's rights and interests. The traffic violation events enforcement procedure is similar to spot checks, which consist of a series of behaviors such as detection, pullover, law enforcement, and release. The purpose of this study is to examine whether the current law enforcement methods and related laws regarding police spot checks and traffic violation events enforcement comply with the norms of due process of law. This thesis firstly analyzes the theoretical basis of due process of law in Taiwanand the context of the Judicial Interpretation of the Constitutional court about due process of law. Then examining whether the laws and regulations on police spot checks and traffic violations events enforcement comply with the norms of due process of law. Based on the appeal decisions and court judgments of two cases, this thesis evaluates whether the police's law enforcement actions in these cases conform to the norms of due process of law and finally puts forward conclusions and recommendations for authorities. In conclusion, the current laws of police spot checks and traffic violation events enforcement are in line with the principle of due process of law.
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正當法律程序, 臨檢, 舉發交通違規, 警察職權, Due Process, Spot Check, Traffic Violation Enforcement, Police Power