從集會自由權探究集會遊行法修正之方向

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Title:	從集會自由權探究集會遊行法修正之方向
Authors:	葉寶鳳 Yeh, Bao-Fong
Contributors:	亞洲太平洋研究所孫國祥
Keywords:	集會自由權;表現自由;集會遊行法 The right of Assembly;Freedom of Expression;The Assembly and Procession
Date:	2001
Issue Date:	2015-05-13 11:09:28 (UTC+8)
Abstract:	集會自由權是外在的「表現自由」（Freedom of Expression），表現自由是一國民主政治的指標之一，從集會、遊行是否受到尊重來加以測知，所以，立憲民主國家均明文規定集會自由權為憲法所保障之人民基本權利，國家有義務加以保護，使其不受非法侵害。集會自由權雖受憲法保障，但並非毫無限制的，憲法第二十三條規定國家在符合一定的條件下可以限制之，即為明證。本論文題目為「從集會自由權探究集會遊行法修正之方向」，主要探討國家對集會遊行權保障與限制的尺度衡量何在，並就研究心得提出建議，期能作為將來「集會遊行法」修正時之參考，讓憲法保障人民之集會自由權真正的能落實，向民主法治的階梯更往上邁進一大步。本文共計七章，主要論述如下：第一章緒論，敘明研究動機與目的，並說明研究範圍、限制與研究方法及架構。第二章從基本人權中自由權的理論形成與歷史沿革及各國憲法上實踐自由權的保障作一概論。本文乃設專章針對集會之定義、集會與遊行及示威權暨聚眾活動先釐清之後，並論究集會自由權在民主政治及憲法上之實質意義。此為第三章論述之重點。本文第四章探討我國以憲法法律保留方式授權立法制定集遊法，對人民自由權的保障與限制立法理由作論述。尤有進者，他山之石，可以攻錯，亦從先進國家對人民自由權的限制及法院判決（例）檢證，這些國家對人民自由權的限制是否違憲提出看法，及我國集遊法訂定經過與採取許可制之立法理由作一剖析。第五章針對集會遊行法中行政救濟及國家賠償之規定加以論述，並提出申復制度之審查機關修改為地方法院簡易庭專司不予許可異議案之建議。第六章就司法院大法官會議釋字第四四五號解釋認許可制不違憲及集遊法條文上的幾個問題加以探討。第七章就本文各章作總結並提建議以供興革，作為今後吾人努力方向。 Freedom to assembly is more than an explicit form of Freedom of Expression, but Freedom of Expression also serves as one amongst several crucial indicators by which a democratic rule is judged by how well the freedom to assembly or demonstration is respected. Hence, democratic countries around the world that uphold a constitution have all but explicitly stated the freedom of assembly in their constitutions as rudimentary rights to the people which are fully protected by the constitution, and that a nation is obligated to protect such sacred rights from ever being infringed upon. Be that the right of freedom to assembly is well protected by the constitution, but it is not without certain limitations, which can best be illustrated by how certain criteria have been enlisted in Article 23 of the Constitution of the Republic of China, stipulating what the government of a country can restrict the exercise of such rights. The thesis, featuring ‘An overview of general directions by which the Freedom to Assembly and Demonstration Law may be amended,’ has been intended to examine to which degree a nation is to protect and limit the right of freedom to assembly and demonstration. And that the findings concluded may be presented in a set of tangible recommendations which may serve as references in the future amendment of the Freedom to Assembly and Demonstration Law, making sure the essence of freedom of expression by the people as stipulated in the constitution may be fully achieved and the democratic rule be moved forwarded to a higher plane. The article is divided into seven chapters, and summarized as follows, Chapter one covers an introduction, citing the research motive and objective, with illustration given to define the scope, imitation and method of research. And the stracture. Chapter two broaches from the formation of right to freedom as basic human rights, the historical profile, and the constitutional protection of right to freedom adopted by various democratic countries world-wide, to present a broad-based coverage. In lieu that public gathering, a form of assembly, can escalate into rioting if it is not been properly monitored as presented in findings from sociological, psychological and socio-psychological studies, the article has set aside a chapter that devotes to introducing the significance, grounds, theories and groupings of public gatherings, aiming to delve into the inner fiber of public gatherings. Moreover, the article further combines public gathering to assembly and demonstration for examining the correlation of freedom of expression to democracy and the constitution. These key points will also serve to highlight the description provided in Chapter three . Chapter four profiles how Taiwan’s constitution presents the Freedom to Assembly and Demonstration Law in a legally withheld method as stipulated in its constitution as the legislative basis for protecting and limited the people’s freedom to expression, in a comprehensive coverage. Led by the intent to mirror the more innovative systems around the world, Chapter four of the article also provides excerptions of limitations to the people’s freedom of expression and prior court rulings adopted in democratically progressive countries, by profiling an objective overview whether certain restrictions by a government may run against the constitutional protection of the people’s right to freedom of expression, and how Taiwan’s Freedom to Assembly and Demonstration Law has come to evolve into what it is today. Chapter five describes the logistics concerning administrative grievances that have been enlisted in the Freedom to Assembly and Demonstration Law, and recommendations for modifying the compliant lodging system by which all complaints are to be heard exclusively by the small court at the district court level and without any further recourse of appeals or contests. Chapter six examines the basis of an interpretation by grand judges of the judicial branch concerning permitting issued under its 445 ordinance has not run against the constitution, in addition to a few issues concerning the logistics cited in the Freedom to Assembly and Demonstration Law. Chapter seven sums up the article’s subsections in an overview with recommendations concluded as a general direction by which references may be found in efforts of future reform.
Appears in Collections:	[Department of International and China Studies, The M.A. Program of Asia-Pacific Studies and Public Policy Studies] Disserations and Theses(M.A. Program in Asia-Pacific Studies)

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