| 摘要: | 本研究旨在我國社會秩序維護法立法緣由，係因「違警罰法」遭大法官解釋違憲所蛻變而成，依據司法院釋字第166號、251號解釋宣告限制人民身體自由之拘留、罰役違憲並限令於2年內失效，故於有限時間壓力下，制定「社會秩序維護法」，將限制人身自由之「拘留」之裁定權，由警察機關移由地方法院審理，以符合憲法精神；而「社會秩序維護法」立法精神、處罰項目、違序行為樣態，與「違警罰法」本質並未有改變，隨著時代進步，人權高漲，不僅執法人員深覺「社會秩序維護法」已不符合現實之社會，人民亦感「社會秩序維護法」有嚴重侵害人權違憲之虞，如「拘留」之執行，雖現已交由法院審理，但是否合乎比例原則之違規不處以自由刑，及其救濟程序是否合宜。再如勒令歇業、停止營業等之執行，由警察機關執行，結果卻是無法達成處罰目的而成效不佳，且涉及人民之營業自由權及財產權，非屬警察機關之管轄權限。因本文涉及之違序行為態樣繁多，其中分則有四章，例如妨害安寧秩序、妨害善良風俗、妨害公務、妨害他人身體財產等共29條，可處罰之違序行為態樣多樣，部分規範形同具文，自立法實施後，即無裁罰紀錄。再者，有關「易以拘留」問題，其立法理由及施行情形，有原僅「財產刑」轉換「自由刑」之憲法第8條人身自由，難謂合宜，仍值深究。尤其勒令歇業、停止營業等處罰由警察機關執行，明顯逾越警察機關之行政權限，不僅成效不佳，必將侵害公權力權威，亦有損人民權利之虞。據此，本文將以立法目的、執行困境及未來修法提出建議。
“Social Order Maintenance Act” of this nation was established after the Supreme Court interpreted “Police Offense Act” as unconstitutional.
The Judicial Yuan Interpretation of Police Offense Act number 166 and 251 declared that limiting personal freedom via detention and punishment is unconstitutional and shall be abolished within two years,
Due to time restraints, “Social Order Maintenance Act” was created and transferred the decision to limit personal freedom and detain from police authority to District Court in order to uphold the Constitution,
while the agenda, jurisdiction, and penalty of “Social Order Maintenance Act” remained unchanged from “Police Offense Act”
As society progresses and civil right swells, not only have the law enforcement personnel perceived the unpracticality of “Social Order Maintenance Act”, the public also became aware of the invasive nature of “Social Order Maintenance Act” toward constitutional right,
Take “detention” for example, even though it is now under the jurisdiction of the court, whether the offense should refrain from impeding personal freedom and the remedies for procedure flaws are still questionable
In addition, business injunctions such as cease operation were carried out by police authority according to “Social Order Maintenance Act”. However, the results are often unsuccessful since the enforcement often infringes the” freedom to operate business” and “property right” which is beyond the jurisdiction of police authority.
This thesis examine wide array of illegal offenses that divided into four chapters of 29 acts including endangering public order, endangering good moral, obstructing government administration, and infringement upon the freedoms and property of other persons. The punishable offense included in these acts varies greatly, certain acts contains no tangible value and has no record of enforcement since the establishment.
Furthermore, “request detention” is controversial in that by executing the detention, the punishment transforms from monetary penalty to personal freedom penalty that are protected by Constitution article eight. Such oversight requires further investigation.
Moreover, the aspect that police authority oversteps their jurisdiction when enforcing business injunctions is especially troublesome. The current system is inefficient, and potentially damaging to the reputation of government authorities and the right civilians. Base on those criticisms, this thesis will offer an insightful discussion regarding the agenda of these acts, the difficulty in exercising the laws, commentary and possible future improvements. |
