Exchanges between Taiwan and China across the strait have become more frequent since Taiwan¡¦s abolishment of the martial law on July 16th, 1987, and deregulation of the restrictions on family visit to China on November 2nd the same year. The mainland Chinese people have longed for going to Taiwan to earn a living, and are engaged in illegal activities in Taiwan one after another. Consequently, many are involved in the violation of Article 18 of the Act Governing Relations Between The People Of The Taiwan Area And The Mainland Area, and hence detained. Detention is a transient measure that prevents the persons concerned from escaping from deportation by constraining their personal freedom, rather than a punitive measure. But due to the lack of a comprehensive mechanism for detention, detention centers are administered individually by different administrative agencies. In some occasions, extended detention is like taking the detained person into custody, and even without a definite term of detention. This poses a serious harm to Taiwan¡¦s human rights image. Therefore, in this essay, the author reviewed the regulations and mechanism, as well as the current practices and status of detention in the mainland Chinese people on the basis of the five frameworks of administrative laws: Basic Principle, Administrative Organization, Administrative Competence, Administrative Remedy and Administrative Supervision, and by means of literature review, comparative analysis and historical induction. Recommendations are also made for the existing regulations and mechanism, in an expectation to achieve more comprehensive detention administration.

本文之目的，是要探討兩岸人民關係條例第二十一條限制設籍台灣地區未滿十年之原大陸地區人民不得出任公務人員規定之合憲性，並擇定以平等權觀點作為切入論述的角度。全文共分為六大部分：第一部分確認大陸地區人民與設籍台灣地區未滿十年之原大陸地區人民在我國之法律地位為得享有平等服公職權之主體。第二部分確立平等權審查之基準，包括事務本質、憲法整體價值、體系正義及比例原則，是為檢證系爭條文合憲性及貫穿本文之核心價值標準。第三部分分析各國及我國公務員法制中，以忠誠度為考量來設定之審核申請出任公務員者「適任性」之法定任用條件之立法目的及法則，以找出與申請者適任公務人員與否重要相關之本質要素為何。第四部分則是分析設籍台灣地區未滿十年之原大陸地區人民之本質屬性，是否具有不適出任公務人員之重要本質要素。第五部分檢討系爭條文所採差別待遇之手段及內容，是否符合比例原則。最後，本文就系爭條文是否符合憲法平等保障人民基本權利之意旨作一綜合評析，並嘗試提出修正系爭條文之具體建議。 / The Mainland Chinese people have become Taiwan people since they settled down in Taiwan area. However, Article 21 of the Statute Governing the Relations between People in Taiwan Area and People in Mainland Area stipulates that the former Mainland Chinese people registered residences in Taiwan area within 10 years (hereafter “former Mainland Chinese people” ) couldn’t serve as civil servants. It is debatable whether said stipulation constituting a discriminatory treatment to part of nationals serving in public service violates Article 7 of the Constitution guaranteeing the right of equality. To begin with, this paper defines the legal status of Mainland Chinese people as nationals from Constitution point of view. Then, the paper looks into the subject from several points of view, including the nature of the addressed subject, the value system of the Constitution, and the purpose of enactment. It is find that the preclusion of the former Mainland Chinese people serving as civil servants is in harmony with amendment to the Constitution. It is furthermore not in conflict with the equal protection of law provided in Article 7 of the Constitution. However, part of the measure of the above said statute not in accord with the principle of Proportion should be amended in order to concur with preservation of state security and the adequate exercise of rights to serve in public service of the people. The Germany’s civil service law, which provides conditions of reappointment of former civil servants under German Democratic Republic after German unification serves as a most valuable reference model.