論選舉期間民調之行政管制界限

在選舉期間，候選人多會嘗試以各式手段及方法，影響選民之決策，民意調查（於下簡稱民調）即為普遍被使用的選戰策略之一，隨著網際網路之擴張以及使用成本之降低，配合行動上網裝置之普及化，皆使選舉民調影響的深度、廣度及速度為之增強，而其對於選舉之過程及結果所可能致生的效應，亦是在討論究竟是否以及如何限制選舉民調時之考量重心。本文擬將探討重心置於「人民或大眾傳播媒體於選舉期間利用選舉民調結果之行為，是否有納入行政管制之必要？」就我國總統副總統選舉罷免法第52條及公職人員選舉罷免法第53條之規定，首先關注選舉期間限制民調之發布或利用，對憲法所保障之表意自由與選舉自由可能造成之限制及影響（貳）；其次，透過對我國現行規範之立法歷程以及法制結構之觀察，同時彙整目前實務運作之情形及其見解，分析現行管制手段所面臨之極限與挑戰（參）；接續就前述爭議，對我國選舉民調管制應遵循之界限，提出個人之觀察與建議，包括：核心價值之選擇、法律明確性及法保留層級之提升、限制選舉民調之實質正當性、建立裁罰基準以及相關配套等（肆）；最後並為結語（伍），期得為我國現行實務運作之爭議，提供治本之制度變革建議。

During the election period, the candidates will more than often try various measures and methods to influence the final decision of the voters. The use of election survey is one of the common methods for an election campaign. As the application of internet continues to expand and its user costs decline, also taking into account the universalization of mobile internet devices, the depth, scope, and speed of the influence of the election survey results continue to strengthen. How these influences could impact the procedure and outcome of the election is the primary focus when it comes to discussing whether and how the usage of election survey should be regulated. The main discussion of this article will focus on “whether there is the necessity to incorporate, the usage of election survey by the people or mass media during an election period, into the administrative regulation?” Firstly, this article will discuss the possible restriction and influence to the freedom of expression and freedom of election, when restricting the release and use of election survey during an election period, according to Art. 52 of Taiwan’s Presidential and Vice Presidential Election and Recall Act, and Art. 53 of the Civil Servants Election and Recall Act. Secondly, this article will further point out the possible disputes deriving from the main discussion through summarization of the current practice and opinions, and the observation on Taiwan’s legislative process and construction of the legal scheme of the present regulation. Thirdly, the article will provide suggestions to the regulation of Taiwan’s election survey mode, including: selection of the core value, the advancement of the principle of clarity and definiteness of law and the principle of legal reservation, the legitimacy of the restriction on election survey and the establishment of the criterion of penalty plus relevant supporting measures. In the end, a conclusion will be made in hope to provide some advices to a radical system reform of Taiwan’s election survey regulation.