| Summary: | 碩士 === 東吳大學 === 法律學系 === 105 === The right to liberty is the fundamental of any other right to freedom. We can not exercise rights without the right to liberty. So the right to liberty is protected by Article 8 of the Constitution in detail, and the comprehensively procedural protection is the feature of it. The retention of judges is the core of the procedural protection of personal liberty of Article 8 of the Constitution, and Habeas Corpus is the indispensible supporting system. However, there is a misinterpretation to the text "on suspicion of having committed a crime" of Article 8-II of the Constitution, which causes a lack of judicial review of numerous restrictions imposed on the personal liberty of a non-criminal defendant. Thus, there is the loophole in the procedural protection of personal liberty.
J.Y. Interpretations No. 708 and No. 710 made at 2013 thinking that the restrictions imposed on the personal liberty of a criminal defendant and a non-criminal defendant are different in nature, so the judicial procedure or other due process of law need not be identical. Therefore, a temporary detention in a brief reasonable repatriate period is unnecessary to be determinated by a judge, but it must be given the opportunity to be remedied by the court immediately afterwards, and a detention which is longer than a temporarily detention period must be reviewed and be determinated by a judge. These two J.Y. Interpretations brought the amending of Immigration Act, Habeas Corpus Act, and Administrative Litigation Act. However, whether such a model is the best fit for a non-criminal defendant whose personal liberty is restricted or not, is worthwhile to observe. Therefore, this article focuses on Alien Detention to inspect whether the current amendment and following judgments can give a comprehensive procedural protection to a detained alien or not.
This article divided into five chapters. The first chapter is about the motivation, purpose, range, and structure of this paper. The second chapter is about the procedural protection of personal liberty, deducing the way the procedural protection of personal liberty should be from Article 8 of the Constitution, J.Y. Interpretations and the foreign legislative examples. The third chapter is about the procedure of Alien Detention, introducing the procedure before discussing the procedural protection of Alien Detention, and talking about related issues and the process of it.The fourth chapter is about judicial remedy of alien detention. This chapter discusses Habeas Corpus Act and Administrative Litigation Act, introducing the contents of the current amendment, reviewing the judgements after the current amendment, and finally making comparisons and analyses. The final chapter is about the conclusion, summing up all the chapters.
|
|---|
