從徵、募兵制的角度比較中、美軍法適用之情形

The Comparison of Military Law from The View of Conscription and Voluntarism

系所名稱：法律學系碩士在職專班比較法學組 學位別：碩士 畢業學年：95年 指導教授：段重民 在民國93年總統大選的話題中，在野國民黨曾將募兵制成為其主要政見，認為役男役期可縮短成三個月，亦即新兵只須施以基本訓練即可退伍。然純募兵制，或稱單一志願役制的實施，以目前國情及中共武力環伺的威脅下，除了有通盤性的戰略顧慮外，可能涉及憲法的變動及相關配套法令的修正。憲法第二十條規定:「人民有依法律服兵役之義務」；兵役法第一條亦開宗明義指出:「中華民國男子依法皆有服兵役之義務」。是以正式確認兵役為國民共有的義務，將來我國若實行募兵制，即意味人民進入軍中服務，是特定少數人與軍隊建立之職業契約或是行政法上所稱之行政契約，因此在我國面臨將來可能遭遇兵制改革的衝擊下，除上開憲法及相關配套法令「可能」會有大幅度的異動外，維持軍紀命脈的軍事審判制度及軍刑法是否能因兵役制度由徵兵制改成募兵制而有不同的運作，亦即我國陸海空軍刑法在兵制適用募兵制的情形下，是否亦能發揮其功能，是為本論文之研究動機。 目前實施募兵制度（職業兵制）最成功的國家代表，即為美國。但美國在1973年實施募兵制後，軍中成為許多低階層、或教育不足青年的出路，在軍事人才素質的培育上出現了問題，甚至成為一種軍事性的投機行為，但亦有其特色，如立法較完備、雇傭關係明確、兵員質量有保障及軍、士官制度行之有效等；而我國雖採徵兵制，事實上是採徵、募兵混合制，優秀的領導人才仍是藉由軍事院校的招募而培訓；士兵主要則是由男子基於法定義務受徵召而來的，近來國防部大量招募志願役士兵，相關法令如志願役士兵服役條例亦孕育而生，足見似募兵制的「高混合制」是將來不可避免的趨勢，惟本論文所研究之目的，並非全然探討徵、募兵制之優劣問題，而是主要在於比較適用徵兵制度的軍刑法在改為募兵制時是否仍能達到保護軍事法益及維持軍紀的效果，進而探討將來軍刑法在其體制下的可能運作情形。是以，相關問題的探討屆時將配合近來年最著名的詹金斯（Charles Robert Jenkins）逃亡案併敘，同時，本文最後將舉美國軍法中最具特殊性的處罰態樣「不名譽退伍」（Dishonorable discharge）為例，貫穿中美軍法因兵役制度的不同所產生之差異，並以此呼應全文要旨。

In the topic of Year 93 of the Republic of China presidential election, the not in power Kuomintang has ever become voluntarism to its main political views, and thinks that draftee's service can shorten for three months, that is a recruit who must be giving basic training can immediately retire from the army. However, the implement of the pure voluntarism, or call the single of voluntarism, under the state of the nation and the threat of the Communist Party of China force, in addition to as a whole sexual strategic worry that we must consider, may involve the correction of the fluctuation of the constitution. The 20th provision of the constitution:" The people shall have the duty of performing military service in accordance with law"; Act of Military Service System Military Service Act Article 1 is also theme stated in opening chapter to point out:" In accordance with the Law, the male citizens of the Republic of China are obligated to take military service. "Military service for the citizen has totally of obligation with formal confirmation. If our country executes voluntarism in the future, it means that the people who service for the army are a contract or an administrative contract, maybe. Therefore, our country may suffer the impact of the reformation of the voluntarism in the future. In addition to the change of the constitution, the related ordinance "possibility" will have the difference of significant degree. So whether or not the military law that maintenance of the military discipline can have a different operation because the military service system is changed from conscription to voluntarism. Therefore, it means that whether our military law which applies voluntarism can develop its function under such situation is the research motive of this thesis.To carry out the voluntarism, the most successful representative nation, currently, is the United States. But the United States that carry out voluntarism becomes many low levels or the young man with low level of education in 1973, it appears a problem in growing military talented person's character, even become a kind of military speculation behavior. But it still has its special features, such as lawmaking is more completely and the relationship between employer and employee is more definitely, soldier's quantity has guarantee and the officer, sergeant's system goes it valid etc. And although our country adopts conscription, in fact is the mix system of conscription and voluntarism, the talented person with excellent leadership who is still by the military college to enlist and train. And soldier mainly by the man who is according to the legal obligation is subjected to a draft. The Ministry of National Defense enlists to volunteer service soldier in great quantities recently and the related regulation also conceive and get；it suffices to show that "high mixture system" of the voluntarism is an ineluctable trend in the future. However, the purposes studied by this thesis that does not inquire into advertising for the good or bad problem of the voluntarism at all, but military law that mainly lies in relatively applying to conscription while changing for voluntarism whether still can reach result of protecting the military benefit and maintaining military discipline and then inquire into the military law under its system of the situation of possible operation in the future. Therefore, the study of the related problems of military law will match with the most well-known case of the desertion of Charles Robert Jenkins recently, in the meantime, this text end will take the most special style of the punishment "dishonorable discharge" of American military law as example to pierce through military law between American and our country and to compare it from the view of conscription and voluntarism concretely.