刑事上不自證己罪原則在行政調查的適用──以行政執行拘提、管收程序為中心

Application of the Privilege Against Self-incrimination in Administrative Investigations：Focusing on Administrative Execution Arrest and Custody Procedures

不自證己罪原則是現代法治國家刑事程序的共通基礎原則，為刑事訴訟法的基本原則。在行政程序中，有諸多行政法規課予當事人協力義務作為行政調查的手段，卻不見不自證己罪原則的規定，因此以行政為目的之行政調查是否有不自證己罪原則的適用，作為當事人協力義務的界限？公法上金錢給付義務的執行屬於重大公益，行政執行機關於行政調查程序中，依行政執行法課予義務人協力義務，並得以拘提、管收的拘束人身自由手段，強迫義務人履行義務，義務人在行政執行拘提、管收的行政調查程序中，是否有不自證己罪原則的適用而享有緘默權？本文整理學說、司法判決、行政執行實務及行政執行法修正草案的見解，比較日本及德國法制，探討上開爭議問題，並提出本文見解。

The privilege against self-incrimination is a common basic principle of criminal procedure in modern rule of law countries and a basic principle of criminal procedure law. In administrative procedures, there are many administrative laws and regulations that impose the obligation of cooperation on the parties as a means of administrative investigation, but there is no provision for the principle of not incriminating oneself. Therefore, does the administrative investigation for administrative purposes have the application of the principle of not incriminating oneself as the limit of the obligation of cooperation of the parties? The execution of the obligation to pay money in public law belongs to a major public welfare. In the administrative investigation procedure, the administrative enforcement agency imposes the obligation of cooperation on the obligor in accordance with the administrative enforcement law, and can use the means of arrest and detention to restrain personal freedom to force the obligor to perform his obligations. In the administrative investigation procedure of administrative enforcement detention, does the obligor have the right to remain silent due to the application of the privilege against self-incrimination? This article summarizes theories, judicial decisions, administrative enforcement practices, and opinions on the draft amendment to the Administrative Enforcement Act, compares the legal systems of Japan and Germany, explores the controversial issues, and presents this article’s opinions.