| 摘要註: |
我國於民國76年解除戒嚴，開放兩岸交流、探親通婚頻繁，而兩岸事務由憲法增修條文第11條賦予法律特別訂定，故民國81年7月21日制定公布臺灣地區與大陸地區人民關係條例，惟鑒於兩岸開放後之假結婚盛行，遂於92年起陸續增訂臺灣地區與大陸地區人民關係條例第10條之1及大陸地區人民申請進入臺灣地區面談管理辦法等相關規定，面談制度施行以來，遣送許多有婚姻疑慮之大陸配偶回國，惟面談制度多涉及個人隱私，而面談不通過致不予許可大陸配偶入境或廢止其入境許可，影響大陸配偶入境居住自由及家庭婚姻團聚權，此影響大陸配偶之權利甚鉅。 故本文參閱美國、日本與德國對於婚姻移民所設之面談機制，並與我國作比較，探討大陸配偶在臺所應有之基本權利與面談機制所侵害之基本人權，並藉由正當法律程序及行政法之原理及適用作檢驗，檢討現行面談法制對於大陸配偶入境居留之相關規定是否合適，並就面談程序及其後續行政處分之各行政行為中，探討大陸配偶之權益遭受侵害時，得提起何種行政救濟類型以資保障，故本論文研究重點即為在安全管理及危害防制之面談機制下，應予大陸配偶何種權利及保障，始符合世界人權之標準及國內現實情境，以期完備對大陸配偶之法制設計，健全渠等之人權保障。 Martial law in Taiwan was lifted in 1987, and as our government started to open up relations between Taiwan and China, more people began to move in and out of mainland and Taiwan, and cross-strait marriages increased. Article 11 of the Constitution regulates: the rights and obligations of Free Area and Mainland are ruled by law. Also, the Act Governing Relations between Peoples of the Taiwan Area and the Mainland Area was formulated and enacted on 21st July 1992. However, many false marriages prevailed soon after our government opened up. For this reason, the relevant Acts and regulations were formulated and enacted from 1992. (For example, Article 10-1 of the Act Governing Relations between Peoples of the Taiwan Area and the Mainland Area and so on was amended.) From the inauguration of the Interview System, many ‘false’ marriages were discovered, and the Government has deported non-legitimate spouses back to the mainland. Many of the questions at the interview of the spouses, are of a very personal nature, and invade the privacy of the couples. However, if not answered satisfactorily , the couples do not ‘pass’ the interview, and our Government bans the entry of the incoming mainland spouse, or has their residence permits revoked or repealed. This seriously affects mainland spouses, as it directly impacts their freedom to enter for legal residence and their marriage and family rights are compromised. This thesis intends to compare the immigrant marriage interview format used by the Governments of the United States of America, Japan, Germany and of Taiwan. And the thesis also explores what fundamental rights incoming Mainland spouses to Taiwan should have, and if and what human rights are infringed during the interview system. Furthermore, it wants to inspect the interview system applicable by due process of law and the principles of administrative law, and to review the existing interview laws or regulations particularly to mainland spouses’ entry permits into Taiwan, for visiting or for residence. And to explore if the mainland spouses’ fundamental rights are being infringed during the ‘interrogation’ (at the interview) and its follow-up processes, and what administrative remedies they can file for self-protection. For this reason, the focus of this thesis is “What rights and protection should our Government give to mainland spouses, during the marriage interview, without compromising our own national security, and still meeting and keeping within the world's human rights standards and domestic reality scenarios, with the idea to improve existing laws and regulations to better protect their personal human rights”. |