我國雖然戒嚴已過去近30年，但是未來可能會再度面臨使用時機，對於它在實施中的問題，正是吾輩基於法治國的事實及因國家主客觀條件的實質改變，研究並瞭解其限制性，期使它能更貼適憲政主義的精神。歸納本論文的討論可知，《憲法》在國家失靈、政府失能的非常時期，如戰爭發生或非常事變，遭逢此等影響國家生存重大事件，藉由軍事統治集軍事防衛、行政、司法權於一身的特殊建制形成戒嚴體制，迅速弭平戰禍和動亂，在戒嚴措施亦即藉軍事管制來維護社會秩序，促成民主憲政運作，及早回復憲政運作常態。在理論上是具可行性，但實際上卻很難保證不會將戰時應急措施無限持續下去。就台灣過去戒嚴經驗，在《動員戡亂時期臨時條款》、《國家總動員法》、《戒嚴法》等構成了實施達38年之久的戒嚴體制，使《憲法》作為「國家根本大法」、「社會共識重心」的基本要旨，面臨了根本的挑戰。
本論文即以此為基點，進行再審視。
Although martial law has been suspended for almost three decades, it may be implemented again in emergency conditions in the future. Regarding the problems of its implementation, it is the mission of our generation to reexamine and understand its limitations based on the facts that ROC is a rule of law state and the substantial changes in the subjective and objective situations, hoping it to be closer to the spirit of constitutional rule. Summarizing the discussions in this dissertation, it is known that when the “constitution” malfunctions and the government fails in situations harmful to the survival of the nation, such as during the wartime or uncontrollable incident, it might be necessary to rule by military force in the aspects of defense, administration, and jurisdiction, to form a special governing body in accordance with the martial law in order to settle the conflicts and suppress the turmoil promptly. Implementing the martial law, it implies upholding the social order through military rule to catalyze the operation of democracy and constitutional rule in order to restore the normal operation of the constitution. In theory, it seems to possible. In practice, it is rather difficult to guarantee that the emergency measures that are implemented during the emergencies may last unconditionally. Reexamining Taiwan’s experience of the implementation of the martial law, the martial law administration that was operated for 38 years in accordance with the “Temporary Provisions Effective During the Period of National Mobilization for Suppression of the Communist Rebellion,” “National General Mobilization Law,” and “Martial Law” with the goal to enable the “ROC Constitution” to become the basic principle of restoring the “fundamental law of the nation” and “the center of social consensus” faced significant challenges.
This dissertation reexamines related issues from the perspectives mentioned above.
