由兒童權利公約檢視國內性剝削兒少安置處遇之法律規範──從保護客體蛻變為權利主體之典範移轉

The Paradigm Shift from ‘Sexual Transaction’ to ‘Sexual Exploitation’: An Analysis of the Newly Amended Statute for Child and Youth Sexual Exploitation Prevention Following the Incorporation of the Convention on the Rights of the Child in Taiwan

立法院於2014年5月20日制定兒童權利公約施行法，賦予聯合國兒童權利公約國內法律之地位，並於今（2015）年1月23日修正通過兒童及少年性剝削防制條例，以確保國內兒童及少年性免於遭受性剝削之侵害。本文係就該條例有關安置處遇之修法內容予以評析，檢視其是否符合兒童權利公約之規範標準，並對未來應如何落實該等規範提出建議。在兒童已由過去保護的客體蛻變為權利的主體之時代，即使是在國家的福利體系中，兒童亦應獲得符合此理念及標準之對待與協助，以踐行公約所要求之典範移轉。以此為基準，本文認為前開條例之整體修法方向雖值得肯定，但就與公約規範之銜接而言，仍有些許不足。對照公約之規範精神及相關條文，本文提出三項建議：（一）主管機關應藉由更為縝密之細部規範具體化安置服務之標準，特別是如何確保被安置兒少「人身自由」及「與家人維繫關係」之權利，以及如何認定安置係符合「兒少最佳利益」之程序規範；（二）善用程序監理人機制協助被害兒少行使其表意權與抗告權，以補強該條例未進一步就如何協助兒少主張並行使其權利提出配套措施之缺憾；及（三）服務成效評估應以消弭歧視為檢視基準，期能確實達成協助這群兒少脫離弱勢處境並重返社會之處遇目標。

On 20 November, 2014, the Coention on the Rights of the Child (“CRC”) became law in Taiwan. At the same time, the Taiwan legislature was reviewing amendments to reform the “Child and Youth Sexual Transaction Prevention Act”, which were passed in February 2015. The Act was retitled “Statute for Child and Youth Sexual Exploitation Prevention” (the “Statute”). By considering the spirit and provisions of the CRC, which emphasize the need for a paradigm shift away from child protection approaches and recognize children as “rights holders”, this article highlights the controversies associated with the “institutional care” aspects of the current law and identifies some of the remaining obstacles for the Statute to be harmonized with the provisions of the CRC.
This article acknowledges that the newly made amendments are plausible in some respects, but several shortcomings remain. (1) The reform has not taken steps to remedy major violations to the human rights of these children while they are placed in public care. (2) No consideration was given to child victims to exercise their rights; in particular, their right to appeal against court decisions. (3) The four general principles of the CRC should have been better incorporated when shaping the law reform.
To bring the Statute more in line with the CRC, this article recommends that administrative authorities provide comprehensive guidance on matters that have not been adequately addressed by the legislature during the reform, including prohibitions on restricting the liberty of child victims and their right to remain in contact with their families while in care. Secondly, mechanisms such as guardian ad litem need to be more widely used to ensure child victims’ voices are heard and that they have the ability to exercise their right to make an appeal in court. Finally, assistance and special measures provided under the Statute should be assessed with the view to closing the gap between the attainment of this vulnerable group of children and other children in a similar age group.