The implementation of the stop-and-frisk duty of the police is extremely closely related to the intervention of people¡¦s freedom of action, privacy and moral integrity right. In the past, the basis of law for the fulfillment of the stop-and-frisk duty by the police authorities was only the ¡§Regulations of the Police Duties.¡¨ Nevertheless, the Regulations contained no content of the objective for initiating the stop-and-frisk duty, the stop-and-frisk procedures and the means of relief. The Regulations only mention the term of stop and frisk, but lack the soul and body of stop and frisk. Based on the term of stop and frisk, the police always legitimized the enforcement of many banning acts, such as searching the house of a citizen in the midnight in the name of fulfilling the stop-and-frisk duty of the household. Similar behaviors were frequently found, thus creating many complaints from the citizens.
After the chancellor of Judicial Yuan made an explanation of Shih No. 535, a lot of feedbacks from the police were undoubtedly created. To Taiwan, this is a great leap in marching towards a country under the rule of law. It has made the police authorities understand the importance of administrative procedures, and urged the birth of ¡§Act of Exercise of the Police Powers.¡¨ In the new Act, the behavior of stop and frisk is replaced by the term ¡§checking of identity.¡¨ A local scholar, Wu Keng once mentioned that ¡§stop and frisk¡¨ had been abolished and not been used. However, is it the fact? This paper is going to investigate the issue. Besides, does the constitution of the Act mean that the stop-and-frisk legal system is sound enough? This is another issue worthy of studying.
Due to the vastness and un-limitedness of Administration Act, there is no country in the world having a sound and complete Administration Act. Nevertheless, viewing at the theories and principles of Administration Act, it can be generally divided into five main structures: basic principles, administrative organization, limit of administrative rights, administrative relief and administrative surveillance. If an administrative legal system is fearless to receive the examination based on each item of the five main structures of Administrative Law, it can be called a sound and complete administrative legal system.
Another local scholar, Li Chen-Shan thinks that the separation of criminal law from Administration Act has led to the division of the police¡¦s mission of maintaining public security into two parts: ¡§prevention of harm¡¨ and ¡§criminal arrest,¡¨ which prevents the administrative harm and the criminal harm respectively. While they cross over the administrative area and the criminal area, stop-and-frisk duty belongs to an administrative behavior. Since it just belongs to the ¡§prevention of harm,¡¨ it should be regulated by the theories and principles of Administration Act. Therefore, this paper takes the stop-and-frisk legal system of police officers as the main body of the study. From the viewpoint of the science of law, this paper employs the abovementioned basic theories of Administration Act, i.e. the ¡§five major structures¡¨ of administrative principles, administrative organization, limit of administrative rights, administrative relief and administrative surveillance, as the research approaches of the study to examine the stop-and-frisk system of the police officers of Taiwan.
Under this mode of thinking, the study is divided into seven chapters. Chapter 1 is Introduction, which firstly raises queries over the practice of fulfilling stop-and-frisk duty by the police authorities, and then introduces the motives, objectives, research approaches, research area and research structure of the paper. Chapter 2 is Basic Principles of Stop-and-Frisk Legal System, which firstly reviews the basic concepts of the two terms, the police and stop and frisk, and then investigates the background for the constitution of stop-and-frisk legal system. In this chapter, substantial information from the social aspect of the practical phenomena, the economic aspect of the optimal adjustment, the political aspect of negotiation and compromising, and the legal aspect of acts and regulations, is presented, enabling us to have a deeper understanding of the practical phenomena of stop-and-frisk legal system. After that, the chapter analyzes and compares the international aspects of the stop-and-frisk legal system of three countries, Germany, Japan and the United States, so as to take them as the references for the improvement of local legal system. Then, the chapter investigates the concepts of the rule of law of stop-and-frisk legal system, as well as the nature of stop and frisk from the angles of the three administrative principles according to laws and the seven principles of procedural justice. Finally, the chapter explores the relationship between stop-and-frisk legal system and the participation of the parties concerned. It is hoped that through the participation methods of the parties concerned, the stop-and-frisk legal system can become more sound and complete. Chapter 3 introduces the administrative organization of stop-and-frisk legal system by starting from the organizational structure of the existing police organization, and then investigates the organizational structure of the police authorities, staff on duty (including the assistants on duty), the budget and other problems. It is expected that a complete organizational structure can be formed to achieve a smooth operation of the stop-and-frisk practices of police officers. Chapter 4 discusses about the design and use of the limit of the rights of stop-and-frisk legal system. The chapter investigates each item stipulated in Administrative Procedure Act,¡¨ including the administrative plan, administrative legislation, legislative punishment, administrative investigation, administrative agreement, administrative guidance and the fulfillment of administrative obligations, hoping to make a comprehensive investigation of the limit of the stop-and-frisk rights. Chapter 5 introduces the relief and problem-solving measures of stop-and-frisk legal system. There is an ancient saying about law, ¡§Where there is right, there is relief.¡¨ This chapter firstly mentions the right of dissent, and then discusses about the issues of pleading, administrative lawsuit, national compensation, compensation of loss and referendum, intending to cover every detail of the rights of citizens. Chapter 6 talks about the administrative surveillance of stop-and-frisk legal system, and investigates the internal surveillance mechanism of the police authorities themselves and the external fair surveillance mechanism of the third parties. It is hoped that the surveillance mechanisms can meet the national and public requirements, no matter from the legal facet or the practical facet. Chapter 7 is the Conclusions and Suggestions, which synthesize the researcher¡¦s discussion of the five main structures of Administration Act. Over some specific items of the existing stop-and-frisk legal system of the police officers that need to be revised or deleted, the chapter proposes concrete suggestions, which can be a reference for the police authorities in exercising their powers, and working on the goals of building the administrative standards of Taiwan according to law, and improving the legal image of Taiwan under the rule of law.
| Identifer | oai:union.ndltd.org:NSYSU/oai:NSYSU:etd-0718107-212214 |
| Date | 18 July 2007 |
| Creators | Lai, Chi-hsiung |
| Contributors | Chen-ching Chi, Shuai-Liang Deng, Yi-Ren Dzeng |
| Publisher | NSYSU |
| Source Sets | NSYSU Electronic Thesis and Dissertation Archive |
| Language | Cholon |
| Detected Language | English |
| Type | text |
| Format | application/pdf |
| Source | http://etd.lib.nsysu.edu.tw/ETD-db/ETD-search/view_etd?URN=etd-0718107-212214 |
| Rights | not_available, Copyright information available at source archive |
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