대만의 경범죄처벌법(「社會秩序維護法」)(총칙)에 관한 연구 - 주요내용과 우리 법의 시사점을 중심으로-

Abstract

This study is to provide an new and helpful material and perspective for the reform of our present minor offenses punishments act(hereafter says our act), through the Social Order Protection Act(「社會秩序維護法」)(hereafter says this act) in Taiwan, which was promulgated on June 29, 1991 and effective from the same day. In this study, after outlining its background and giving the general survey, if necessary. we try to give some advices for the reform of our act. For amendement of our act, promulgated on December 31, 1983, there has been several preceding scholaly or working-level works have been done on the topics of comparative minor offenses punishments act, but no systemic attempt has yet been made to this topic. For the most part, they have tended to center around the examples of Germany(Gesetz über Ordnungswidrigkeiten), France(Code pénal, contraventions), Japan(Minor Offenses Act) or America(misdemeanor; Civil Money Penalty) etc. But in my view, this examples of this nations, in some cases, the legal nature are different each other, in another cases, as in our act, are short of the systemicity, because our act enumerate 54 kinds of the minor offenses(Art. 1, subparagraph 1 to 54) in one article, and there are 2 to 3 things about another general provisions and 4 articles about special applications, so very insufficient in its entire formulation. In this respect we should really learn a lot from taiwanese experience, where it has one law about the punishment of the minor offenses besides penal code and the administrative penalty law, which corresponds to our act on the regulation of violations of public order. In exploring the taiwanese example about the minor offenses, this paper will be limited to consideration of a brief sketch of the social order protection act(general provisions), especially the recent develpment of it, including its history, which is retroactive to the year of the last period of Ching and the contents of its main text. Before going on with the main question, it should be mentioned that this present act is made through several amendments, par example 1906, 1908, 1915, 1916, 1943, finally it adopted the act name of violation of social order and its protection, formley misdemeanor enforced by the police or punishments for police offences etc. Next I survey the main contents and its characteristics of the present act, which consists of 4 parts : general provisions, procedure of sanction, special provisions and supplementary provisions. In exploring this topic, this paper is limited to the consideration of the act itself, especiallty its contests of entire articles. First in its part 1, which is orderd in 4 chapters by general rules, responsibility, punishments and limitations. The part 2 has the 5 chapters : juridiction, investigation, sanction, execution and remedies. In part 3 it has 4 categories, one after the other, violation of public order, interference to public moral, interference with official duty and violation of other's body & property. Proceeding from what has been said above, we suggest our act should be made into three parts : the general provisions(part I), the special provisions(part II) and the supplementary provision(part III). The former, which has been considered the shortest in its system in my view, could include the general rules, responsibility(punishments included), and procedure of sanctions : juridiction, investigation, sanction, execution and remedies etc. The part II should be classified by several category, which also can be suggestive as a 4 types of taiwanese act, on which nevertheless to reach a fuller types, we need to work more closely at another comparative example for Germany, France, Japan, USA and also China etc. Nonethelesss, it is to be hoped that this tentative study lays the foundation for future work on our reform of our minor offense punishment act.