行政檢查與令狀原則之界限探討

Boundary between Administrative Inspection and Warrant Requirement

行政調查與行政檢查性質不同。由行政官員所實施類似刑事搜索的行政檢查，與針對犯罪嫌疑所實施的搜索，本質上均係一種對人身自由、居住自由與隱私權的侵害。行政檢查既係一種對人民身體、文件、住宅或其他處所之搜索，且因此所獲得之證據，亦具有刑事與行政證據的雙重性格，顯然已與刑事搜索無異。準此，行政官員欲進入人民住宅或對人民身體、文件與財物為檢查時，在通常情形下，亦應取得法官簽發之搜索票。但受政府管制的「嚴密規範行業」，執法人員毋須持有法官簽發之令狀，僅須依據法律之明確授權，即得進入該等場所實施行政檢查。以行政檢查掩飾刑事搜索，構成違法的搜索、扣押，因此所取得之證據因違反令狀原則，應無證據能力。

Administrative inspection differs from administrative investigation in nature. Administrative inspection conducted by administrative officials is essentially similar to the criminal search on crime suspects because both are violations against physical freedom, freedom of residence, and right to privacy. Administrative inspection is a procedure by which law enforcements can search a person’s body, documents, residence, and other places, and the acquired evidence possesses a dual criminal and administrative nature; thus, administrative inspection can be regarded as the same with criminal search. Accordingly, when administrative officials intend to enter a person’s residence or inspect his or her body, documents or properties, they must obtain a search warrant issued by judges in a general situation. However, for the strictly regulated industries, law enforcement officers are not required to obtain the search warrant; they are allowed to conduct administrative inspection only according to the clear authorization bequeathed by the law.
The criminal search disguised by administrative inspection constitutes illegal search and seizure. Thus, the acquired evidence should not be admissible because of its violation against the warrant requirement.