碩士 / 國防管理學院 / 法律研究所 / 92 / The most import mission of constitution is to protect the right of people’s freedom ,habeas corpus is the clause king in the field of human right protection, it’s need to make live in the law. The litigation right is protected by the article 16 of the constitution law, however, by putting more weight on the “administrate following the law” nowadays , whether the Armed Forced Punishment Act and it’s enforcement rules can be past through the examination of constitutionality would be an issue of discussion.
Solider are the civilian people who wearing the uniform, their basic right should be limited more strictly than other civilian, but shouldn’t deprive of their right of qualification and litigation as a civilian , as a result of an unequal situation. Therefore, the limitation of their basic right should base on either the laws or the regulations which are authorized by the law, or on the necessary of the armed forced, and meet the principle of proportion.
The research of National Defense’s legislation is always ignored by people, especially in the Armed Forced Punishment Act and it’s enforced regulations,
this paper is abstracted introduction for the thing such as the effect, event, period, procedure and protest channel of this Act , also expand to the soldier’s punishment system of Germany and U.S. contrasting with Taiwan’s system for the reference as well.
Habeas corpus is not allow to deprive without the law’s authorization, no administration authority can infringe such right, even the Legislative Yuan can not assign to other organizations to practice the duty of interrogation or punishment other than judicial court .Constitution is allow to assign the administration organization to enact the regulation with respect to the habeas corpus by the authorization of the law to supply the law’s unclear in some way, but this assignment has to correspond to the clarity principle. The legislative system is accord to the legislature right to administration organization for limit the habeas corpus without a clear goal ,range or content is an inappropriate authorization, it can not pass through the examination of the constitution. Armed Forced Punishment Act and it’s enforced regulations doesn’t has a clear requirement, the effect of this Act even can be easily influenced by the subjective thought.
The litigation right is protected by the article 16 of the constitution law, therefore, enacting a duly procedure and regulations of the Armed Forced Punishment Act is important. As the Act is long ignored by people, we hope it can be hold with one accord thought to modify this Act and it’s reference regulations in short time, lest people sneer at military as the “darkness corner of the human right”. Hopefully, some modifications in the Act within this paper can be meet the expectation of people, and find the balance point in the military-management .
| Identifer | oai:union.ndltd.org:TW/092NDMC1194017 |
| Date | January 2004 |
| Creators | 張培璵 |
| Contributors | 韓毓傑 |
| Source Sets | National Digital Library of Theses and Dissertations in Taiwan |
| Language | zh-TW |
| Detected Language | English |
| Type | 學位論文 ; thesis |
| Format | 153 |
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