從自由權保障之觀點論國軍悔過懲罰制度

Comments On The Military Penitent Punishment System From The Viewpoint Of Guaranteeing The Right To Freedom

新修正的陸海空軍懲罰法，為了呼應軍中人權保障的法治意識，乃將士官懲罰種類刪除「管訓」，保留「悔過」，士兵部分亦刪除「管訓」，「禁閉」則修正為「悔過」。「悔過」懲罰，性質上屬拘束人身自由之處罰類型，本法所採準用提審法規定處理之救濟程序，是否符合大法官解釋所揭示「法官保留原則」之軌跡脈絡及學界之看法，而合於憲法第8條之規範意旨，容有探討餘地。另執行「悔過」懲罰與責令被懲罰人簽立「悔過保證書」之行為，是否干預被懲罰人的「消極不表意自由」，而有違憲法保障言論自由之人民基本權，亦有探究空間。新法呼應軍中人權保障所為的修正，雖已確立新的里程碑，但仍應有更宏觀的思維，確保軍中人權的保障更符合時代趨勢。

In order to be consistent with the legal consciousness of the protection of human rights in military, the latest amendment of the Armed Forces Punishment Act has deleted the Reforming Training and reserves the Penitence in non-commissioned officers'pun ishment; the Reforming Training was also deleted and Confinement was amended to Penitence for enlisted soldiers'punis hment. As for enlisted soldiers'punis hment, Reforming Training was deleted and Confinement was amended to Penitence. Because the essence of Penitence belongs to the restraint of personal liberties, thereby the procedure for the latest amendment of Act of Punishment of the Armed Forces is applicable mutatis mutandis of the Trial Procedure of Habeas Corpus Act. However, whether the remedy procedure conforms to both principles of retention for judge's decision and scholarly opinions, the implication of the Article 8 of the Constitution or not, needs more in-depth discussion. Moreover, signing a statement of repentance seems to oppress the right of Negative freedom not ideographic in the Penitent procedure. Therefore, The process disobeying the protection of freedom of speech and the Constitution still requires further discussions. Since the latest amendment of Punishment Acts of the Armed Force sets a milestone to protect human rights in military, a broadened perspective is in need to ensure that the amendment accords with the trend of human rights protection.