| 摘要註: |
本論文主要在討論我國總統刑事豁免權及其所衍生之機密特權。首先界定我國憲法上總統的各種權力，並且檢視近年來，尤其是修憲過後我國總統權力在憲法上之變化、實務及學理上對於總統之各種權力與憲政體制之關係及重大關連。 之後回到主題「總統刑事豁免權」及「機密特權」之歷史、本旨探究，豁免權部分從文義上及制憲當初之總統制度背景為探討，提出各種可能之憲法思考面向，作為後續之探討，而機密特權部分因憲法過去無明文，則先從釋字第五八五號解釋推得「行政特權」，藉此是否可能衍生出所謂總統之「國家機密特權」的憲法根源。 而此問題過去我國實例不多，因此比較外國法而借鏡即有意義，本文嘗試提出法國、美國及德國三個主要國家為參考比較對象。法國法為近年所發生之席哈克案，並且就相關之該國法院判決及委員會決議得出心得；美國法則為總統豁免特權及行政特權等學說之先驅，早於制憲當初即存在於權力分立的核心價值當中，輔以近年的幾個著名例子，比方尼克森、柯林頓等人之討論；最後檢視我國憲法本文曾效法的德國制度，尤其是對於刑事程序上，對於總統之權力可能之衝擊。 又回到我國憲法實務之部分，除回顧釋字第三八八號解釋外，主要檢討對象為釋字第六二七號解釋，本文從權力分立原則及總統權力的變化等各種面向為討論，檢討司法實務對於總統刑事豁免權及機密特權之範圍是否已臻明確，並與國外之例證互為比較參考，最後希冀得出總統之刑事豁免權及機密特權所可能不足之處，及將來或可藉由修憲而改進之處。 This research paper mainly discusses about the criminal immunity right of the president of Taiwan and its derived secret privilege. First of all, the paper defines the various powers of the president stated in the Constitution of Taiwan. Then the paper examines the changes and practices of the Taiwan president’s powers in the Constitution in recent years, especially after the revision of the Constitution, and also studies the theoretical relationship and significant correlation between the president’s different powers and the constitutional system. After that, the study goes back to the discussion on the history of the themes, “the criminal indemnity right” and “secret privilege” of the president. For the part of indemnity right, the study investigates its textual meaning and the background of presidential system when formulated at the very beginning. Different possible thinking facets of the Constitution are proposed for making subsequent investigation. As to the part of secret privilege, since there was no related proclamation written in the Constitution in the past, “special executive privilege” can somehow be induced from Judicial Yuan Interpretation No. 585. Based on “special executive privilege,” can it possibly derive the constitutional source of the so-called “state secret privilege” of the president? In Taiwan the real examples of this problem were rare in the past. Therefore, it is meaningful for the paper to compare this problem with the related laws of foreign countries and take them as a reference of investigation. The paper attempts to propose the laws of France, United States and Germany as the referential and comparative targets. For the laws of France, the case of Bernadette Chirac happened in recent years is an example proposed by the paper. The paper makes comments on the related judgments of the French court and the resolutions of the Committee. As to the laws of the United States, the country is the pioneer of the theories of the president’s indemnity right and executive privilege, which actually have long existed in the core value of the separation of powers ever since the United States Constitution was formulated. The paper also discusses about the cases of several famous presidents in recent years, such as Nixon, Clinton, and others. Finally, the paper reviews the possible impacts of the German system, which the text of the Constitution of Taiwan, particularly its criminal procedures once followed, on the powers of the president. Going back to the real practices of the Constitution of Taiwan, apart from recollecting the explanation of Judicial Yuan Interpretation No. 388, the paper mainly takes the explanation of Judicial Yuan Interpretation No. 627 as the review target, and discusses from different facets, including the principles for the separation of powers and the changes of the president’s powers. The paper reviews whether judicial practices have been clearly regulated in the area of the president’s criminal indemnity right and secret privilege. The paper compares the local situation with the foreign examples, and takes their cases for reference. Finally, it is hoped that the insufficient parts of the president’s criminal indemnity right and secret privilege of Taiwan can be found, and further improved through the revision of the Constitution. |