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    Please use this identifier to cite or link to this item: http://tkuir.lib.tku.edu.tw:8080/dspace/handle/987654321/87706

    Title: 行政裁量適用於外來人口延長收容之研究
    Other Titles: The study of administrative discretion on non-citizen detention extension
    Authors: 張淑娟;Chang, Shu-Chuan
    Contributors: 淡江大學公共行政學系公共政策碩士在職專班
    邱華君;Chiu, James Hwa-Jiun
    Keywords: 收容;外來人口;羈押;人權兩公約;detention;non-citizen;detained;the two international covenants on human rights
    Date: 2013
    Issue Date: 2013-04-13 11:33:49 (UTC+8)
    Abstract: 人權乃具有根本性之普世價值,係人人皆享有之權利。外來人口收容及延長收容涉及人權,實為確保遣送出境之暫時性保全措施,係行政處分而非刑事處罰。惟收容已限制人身自由,應避免濫用收容及延長收容之行政裁量權,而導致無限期收容之情況,造成外來人口在臺因案遭「收容」,實際卻形同「羈押」之情形,有「以收容之名,行羈押之實」之疑義,此恐難保障外來人口之人權。自我政府簽署人權兩公約後,因應兩公約相關修法,以符合我國憲法第8條及公民與政治權利國際公約第9條關於人身自由之規定,為保障受收容外來人口之基本權利,明定收容及延長收容之目的、要件及收容期限,使行政裁量適用於外來人口延長收容不致逾越法定之職權範圍,外來人口延長收容亦受到我國法律之保障。
    Human Rights are universal values enjoyed by every human being. As an administrative measure rather than a criminal punishment, the detention for non-citizen is but a temporary security measure to ensure the eventual deportation. Nonetheless, such measures infringe the personal liberties, and already there have been cases in which non-citizen was detention involved in criminal investigations were said to be under detention, but actually detained like criminals. To prevent this administrative measure from being overextended to where the detainees are held indefinitely, and to protect the fundamental human rights of the non-citizen when they are in the country, limit the non-citizen’s freedom should to avoid. Since the implementation of International Covenant on Civil and Political Rights and the International Covenant on Economic, Social and Cultural Rights, legislators have passed corresponding acts to accommodate the treaties, in compliance with Citizen’s right in political participation and in personal liberty as specified, respectively, in Article 8 of our Constitution and Article 9 of International Covenant on Civil and Political Rights. To safeguard the fundamental rights of non-citizen under detention, there needs to be a specified and stipulates that the purposes ,the elements and deadline to constitute the extension of the detention, so that the administrative measures would not usurp the boundaries of the agencies authority, and that the rights of the said person would be protected by due process of the law.
    Since the extension of non-citizen detention affects profoundly the fundamental rights of nationals with household registrations, foreigners (including stateless persons), and residents of Hong Kong and Macao, the exercise which must conform to the principle of equality, the principle of proportionality, Irrational prohibited principle、prohibiting wanton principle of our Constitutional and administrative law on the general principles of laws. How the detention extension can be fairy, legally, and sensibly exercised under administrative measures, both in theory an in application, is up for much investigation. This has become especially significant, since the announcement and enactment of the amendment of Immigration Law Article 38 on December 9 of 2011, which has garnered considerable attention from the general public. This thesis seeks explore the various issues regarding of administrative discretion on non-citizen detention extension, and will hopefully generate valuable insights for further discussion.
    This thesis will be divided into the following five parts:
    Chapter I part: A description of the background, motivation, purpose, research structure, methods, the scope and limits, and definitions of terms.
    Chapter II part: Exploration of theories of administrative measures, as pertaining to the principles and application to detention extension for non-citizen, as well as the related rights and obligations of either paries.
    Chapter III part: A comparison between the corresponding laws regarding administrative discretion on non-citizen detention extension in the Republic of China, USA, Japan, Canada, and Germany, and a close analysis of advantages and shortcomings of each.
    Chapter IV part: The current dispute points and the problems on administrative discretion on non-citizen detention extension , A survey of professional opinions from scholars and agencies regarding the issues they face when enforcing these administrative measures discretion on non-citizen detention extension.
    Chapter V part: The current execution situation and the problems on administrative discretion applies to detention extension for non-citizen, taking into account the opinions of the theory and substantive units, based on the above discussions in theory in application, for the legislators to consider when making laws, so to promote human rights in the future.
    Appears in Collections:[公共行政學系暨研究所] 學位論文

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