The Study of Administrative Discretion on Non-Citizen Detention Extension

• Main Authors: Shu-Chuan Chang, 張淑娟
• Other Authors: Dr.James Hwa-Jiun Chiu
• Format: Others
• Language: zh-TW
• Published: 2013
• Online Access: http://ndltd.ncl.edu.tw/handle/14803732524602738511

碩士 === 淡江大學 === 公共行政學系公共政策碩士在職專班 === 101 === Human Rights are universal values enjoyed by every human being. As an administrative measure rather than a criminal punishment, the detention for non-citizen is but a temporary security measure to ensure the eventual deportation. Nonetheless, such measures infringe the personal liberties, and already there have been cases in which non-citizen was detention involved in criminal investigations were said to be under detention, but actually detained like criminals. To prevent this administrative measure from being overextended to where the detainees are held indefinitely, and to protect the fundamental human rights of the non-citizen when they are in the country, limit the non-citizen’s freedom should to avoid. Since the implementation of International Covenant on Civil and Political Rights and the International Covenant on Economic, Social and Cultural Rights, legislators have passed corresponding acts to accommodate the treaties, in compliance with Citizen’s right in political participation and in personal liberty as specified, respectively, in Article 8 of our Constitution and Article 9 of International Covenant on Civil and Political Rights. To safeguard the fundamental rights of non-citizen under detention, there needs to be a specified and stipulates that the purposes ,the elements and deadline to constitute the extension of the detention, so that the administrative measures would not usurp the boundaries of the agencies authority, and that the rights of the said person would be protected by due process of the law. Since the extension of non-citizen detention affects profoundly the fundamental rights of nationals with household registrations, foreigners (including stateless persons), and residents of Hong Kong and Macao, the exercise which must conform to the principle of equality, the principle of proportionality, Irrational prohibited principle、prohibiting wanton principle of our Constitutional and administrative law on the general principles of laws. How the detention extension can be fairy, legally, and sensibly exercised under administrative measures, both in theory an in application, is up for much investigation. This has become especially significant, since the announcement and enactment of the amendment of Immigration Law Article 38 on December 9 of 2011, which has garnered considerable attention from the general public. This thesis seeks explore the various issues regarding of administrative discretion on non-citizen detention extension, and will hopefully generate valuable insights for further discussion. This thesis will be divided into the following five parts: Chapter I part: A description of the background, motivation, purpose, research structure, methods, the scope and limits, and definitions of terms. Chapter II part: Exploration of theories of administrative measures, as pertaining to the principles and application to detention extension for non-citizen, as well as the related rights and obligations of either paries. Chapter III part: A comparison between the corresponding laws regarding administrative discretion on non-citizen detention extension in the Republic of China, USA, Japan, Canada, and Germany, and a close analysis of advantages and shortcomings of each. Chapter IV part: The current dispute points and the problems on administrative discretion on non-citizen detention extension , A survey of professional opinions from scholars and agencies regarding the issues they face when enforcing these administrative measures discretion on non-citizen detention extension. Chapter V part: The current execution situation and the problems on administrative discretion applies to detention extension for non-citizen, taking into account the opinions of the theory and substantive units, based on the above discussions in theory in application, for the legislators to consider when making laws, so to promote human rights in the future.