| 摘要: | 憲法第16條明定：「人民有請願、訴願及訴訟之權」，係指人民基本權利遭受侵害時，享有依法定程序向法院提起訴訟請求救濟之權利，而法院有依法公平審判之義務。然此所稱之「人民」似不及於監獄行刑之受刑人，理由在於監獄行刑長久以來被歸類為「特別權力關係理論」之場域，並以該理論作為限制及剝奪受刑人訴訟權或其他權利之基礎，故當受刑人對監獄處遇或決定不服時，其救濟途徑，按現行之規範，除監獄行刑法第6條及其細則第5條規定提出申訴外，並無其他司法訴訟程序提起救濟可循。
特別權力關係理論源自中古世紀歐洲以君主與家臣為核心所發展之理論，至二次大戰後，逐漸被法學界及實務界檢討、抨擊。本文首先觀察德國、日本特別權力關係理論發展之趨勢，以及分析近年來我國司法院對特別權力關係理論突破之見解；其次探究憲法保障人民訴訟權之核心內涵，同時參考國際人權公約有關訴訟權保障之規範。其主要目的在於確立受刑人與國家刑罰間之法律上地位，應即為憲法基本權利保障之主體，故無庸再以特別權力關係理論詮釋監獄行刑之關係，縱使國家限制受刑人之基本權利時，應回歸憲法第23條規定之限制。
為瞭解實務界對受刑人法律上地位之態度，本文首先，蒐集近10年來監獄行刑事件訴訟實務案例之裁判，並以司法院釋字第653號解釋為基準點，分析比較受刑人之訴訟權，是否據此而改變過往之見解？其次，進而探討監獄行刑事件審判之管轄權，究應循刑事訴訟程序？或是行政訴訟程序？或是特別訴訟程序？建構適當訴訟審理之程序，以符合權利保護必要性之原則。
最後，本文認為，我國受刑人行刑事件之權利救濟途徑，除應容許受刑人對所有監獄措施或決定提起司法救濟外，如未來擬依行政訴訟程序審理監獄行刑爭議事件時，若基於訴訟經濟考量，應可嘗試就各種監獄行刑事件對受刑人權益影響之程度予以區別類型化，並參考交通裁決事件救濟途徑改制目的，分別建立寬、嚴不同之訴訟程序，進而採取合理適當之訴訟程序，希能於矯正法規變革之際，提供淺見供當局參考，以促進監獄行刑法之完善性，期符合憲法保障人民訴訟權之意旨。
Article 16 of the Constitution states that “the people shall have the right of presenting petitions, lodging complaints, or instituting legal proceedings,” which empowers the people to enjoy the right to bring up litigations for remedy in courts with due process when their rights were infringed, and the courts have the obligation to deliver judgments impartially in accordance with the law. Notwithstanding, the coverage of the word “people” prescribed in the above article seems not include those inmates serving their terms behind bars. The reason of this situation might be attributable to that, from time to time, prisons have been regarded as a situation regulated under the theory of “special relationship of authority,” which has also been applied as the basis to restrain and deprive the right of litigation or other rights. Therefore, when an inmate has opposition to accept prison rules, under current regulations, he/she could only appeal in accordance with Article 6 of the Prison Act and Article 5 of Enforcement Rules of the Prison Serving Act, and should not claim remedy via normal judicial procedures.
The theory of the special relationship of authority was originated since the middle ages in Europe, and designed for the relationship between the king and his counselors. After the end of Second World War, this theory was gradually reviewed and criticized by the jurists and in the judicial practice. This article first observes the trends of development of the theory of the special relationship of authority in Germany and Japan, and analyzes the opinions of Taiwan Judicial Yuan concerning the breakthrough of the theory of the special relationship of authority in recent years. Secondly, this article also aims to discover the core value of the Constitution regarding the protection over people’s right of litigation, and borrows some insights from the relevant international human rights conventions. The purpose is to reaffirm the legal status of the inmates serving their penalty rendered by the state, that the fundamental rights of the inmates are still under the protection of Constitution, and thus the theory of the special relationship of authority should no longer be applicable when interpreting the relationship between the inmates and the state. Therefore, the state could only restrict the fundamental rights of the inmates with Article 23 of the Constitution.
To understand the attitudes towards the legal status of inmates from the legal professionals in practice, this article firstly gathers the judgments concerning cases of prison serving in the recent 10 years, and analyzes whether the judicial opinion regarding the right of litigation of inmates has changed after the release of Judicial Interpretation No. 653. Moreover, this article further discusses the jurisdiction concerning cases of prison serving, and, among the criminal procedure, administrative litigation procedure or the special litigation procedure, which should those cases follow, so that the proper litigation proceeding may be established and carried out as to fulfill the principle of necessity in protecting rights.
Finally, this article believes that, regarding the remedy of inmates in cases concerning prison serving, the inmates should be permitted to adopt judicial remedy against all kinds of prison serving measures. In addition, considering the interest of economic litigation, if the litigation concerning prison serving would be carried out in administrative litigation procedure, it should be appropriate to classify different prison serving circumstances by how severe the right of the inmates was undermined and establish different litigation proceedings accordingly as to find the most suitable procedure applicable. The way of classification could refer from the reform of the remedy in traffic disposition cases. As the regulations of corrections are now under reform, this article provides the regulatory agency a quick view, promoting the completion of the Prison Act, with the hope that the reform could conform to the protection of the right of litigation under the Constitution.. |
