警察人員私領域行為法定限制之研究—以非公務出入不正當場所及男女不正常交往遭懲處為引

Abstract

根據內政部警政署統計近五年（民國93年至97年）警察人員重大違紀（記過二次以上者）案件中，涉足不正當場所及男女不正常交往二項即已占警察人員違紀案件的一半左右，亦足見其發生件數之多與頻率之高。且另一較明顯現象為男女不正常交往遭懲處記過二次以上者，不論件數及人數均有逐年急遽增加現象。 警政署相關規範既多，又多屬對警察人員行為之約束與限制，是否對個人私領域行為干預、侵犯？甚至過當？本研究特以警察人員重大違紀案件幾占半數之出入不正當場所及男女不正常感情交往二類案人件為引，加以探討。 針對本研究文獻探討之相關論述、公務員懲戒委員會與公務人員保障暨培訓委員會相關案例以及訪談對象相關意見之整理分析，歸納與本研究有關之發現計有：一、有違憲疑義；二、懲處優先懲戒之適用；三、懲處規範疊床枝蔓；四、警察人員權益保障尚未落實正當程序；五、公務倫理應與私德有所區分；六、特別權利關係遭受質疑；七、警察私領域行為仍難脫社會高標準檢視；八、以維護或彌補警察聲譽為首要；九、連帶責任的期待可能性；十、社會觀感與民眾信任仍需強化等諸多現象，有待警察機關加以重視。 對於警察人員基本權利之保障，經由文獻檢閱、實證案例之整理及訪談意見之分析，對於現行警察機關「非因公涉足不正當場所」與「男女不正常感情交往」此類行為，如與公務無涉，純屬私領域之個人行為者，本研究認為應非屬於憲法第二十三條得以法律限制之保留事項，相關懲處規定若不予區分實有合憲性之疑慮。又現行警察機關對此類行為所訂定之處理原則或懲處規範，僅具行政規則之性質，而無法律之授權，並將公務人員考績法等諸多規範及行政處分予以整合，自成一套專責處理原則，對一種行為做出多種之懲處效果，亦顯失公平正當。 而後針對警察機關提出原則性之觀念及部分可供參考之具體措施，以作為對此類行為之參考意見，期使政策制訂者本於職權作審慎通盤性之考量及檢討，以使警察人員之基本權利能獲有適當合理之保障。

According to the statistics of the National Police Administration of Ministry of the Interior in recent 5 years (from 2004 to 2008), among the cases of major disciplinary violation (i.e., behaviors with more than two recorded demerits) by the police personnel, the categories of going into improper venues and involving abnormal relationship with opposite gender personnel have occupied half of the aforementioned cases, indicating a high occurrence frequency of these cases. Also, another obvious phenomenon has been that the category of behavior involving more than two recorded demerits caused by involvement of abnormal relationship with opposite gender personnel has evidenced an annual sharp increase both in case and personnel counts. With so many relevant norms and regulations in the National Police Administration which are all constraints and restrictions in nature on police personnel behavior, whether these norms and regulations have gone too far as to interfere with or become in violation of personal privacy has fallen under core concerns of this research thesis. In the case study, the research thesis has particularly sampled two case categories of major disciplinary violation, including the cases of going into improper venues and the cases of involving abnormal relationship with opposite gender personnel. These two categories have amounted half of the cases of major disciplinary violation by the police personnel. After studying related documents and writings, and relevant cases in the Disciplinary Committee of Civil Servants and the Protection of Civil Servants and Training Committee, and interviewing various sampling persons, the research thesis has summarized some relevant findings, including: 1. Has violates the constitution the anxiety; 2. Disciplinary punishments always overwrite others; 3. The disciplinary norms and regulations have been duplicate; 4. No due procedure has ever been facilitated to ensure the rights and interests of the police personnel; 5. The official business ethics should have a distinction with personal morals; 6. The special right relations encounter the question; 7. Police the private domain behavior still with difficulty escaped the high standard inspection; 8. Maintain or make up for the police to the reputation of the most important; 9. The concerns on possible joint and liable responsibility; 10. Social perception and public trust on the police deserve more attention by the police agency. In regard to protection of the fundamental rights of police personnel, after analyzing and summarizing relevant documents and writings, empirical cases, interviewees’ comments, the research thesis has concluded that a police personnel “going into improper venues” or “involving abnormal relationship with opposite gender personnel” if his or her behavior has nothing to do with police affairs or is solely a private behavior ought not to fall under the reservation limit scope stipulated by the law based on the Article 23 of the Constitution. Accordingly, the related punishment regulations require discriminative judgment. Otherwise, a constitutional doubt can be raised on it. Furthermore, the rules and regulations stipulated by the police agency towards these disciplinary violation behaviors merely are administrative rules in nature with no legal basis and authorization. Worst as well, the regulations concerning civil servant performance evaluation and administrative punishments have been integrated together and become a set of unique dedicated rules. As a result, a police personnel whose behavior involves the said violation receives more than required punishments. It is absolutely an injustice act. Then for the police authorities of the concept in principle and some specific measures for the reference to such acts as a reference, a view to policy makers in terms of the overall nature of careful consideration and review in order to enable the police personnel fundamental rights can be appropriate and reasonable security.