論國家安全法山地管制之合憲性——兼評臺中高分院107年度原上易字第16號刑事判決

The Constitutionality of Mountain Regulation in National Security Act: Comments on a Case in 2018 of Taiwan High Court Taichung Branch Court

本文由一件人民從事登山活動未申請入山證遭致法院判刑確定之案例出發，探討國家安全法之山地管制制度。本文首先釐清山地管制涉及人民之基本權態樣，而後進行實質合憲性之審查。關於目的之審查，本文認為保護國家安全、山地治安應可作為重要之公益目的，然監控原住民，應不可作為合憲之重要目的。關於手段之審查，本文認為以事前許可制達成保護國家安全目的並非合適之手段，而以事前許可制達成保護山地治安目的，應有如報備制等其他更小侵害之手段，是現行事前許可制之手段與目的之達成無實質關聯，無法通過實質合憲性之審查。本文亦詳細介紹立法院針對國家安全法山地管制之修法提案。最後，針對本案南投地院與臺中高分院之判決，本文認為，原住民身分應可該當事前許可制之豁免申請事由，此外林務局人員為命登山客離去之通知，應係符合正當行政程序之合法通知。又立法院已有修法草案之提出，並獲致國防部、內政部與不分黨派委員之共識，故本案被告應可以超法規阻卻違法事由，阻卻不法。 This article is talking about the mountain regulation in Taiwan. Inspired by a recent case in 2018, which people violated article 5 section 2 and article 7section 1 of National Security Act, namely they entered into mountainous areas, where have been designated as control zones, without applying for permission. After introducing the content of mountain regulation in National Security Act, this article finds that those regulations interfere some kind of fundamental rights which are guaranteed by our constitution. Therefore, those regulations must to pass through the judicial review, which this article focus more on the substantial review. That is, it should has due purposes, and according to the rule of proportionality, those regulations need to be appropriate, necessary and proportional. First, this article finds the purposes of mountain regulation of National Security Act, such as the security of country, peaceful society and public order. However, supervision of Taiwanese aborigines isn't a due purpose, which those regulations implicitly aim to. Second, analyzing by the mean of the rule of proportionality, this article finds that those regulations aren't appropriate methods to achieve the goal of security of country, and it also isn't necessary methods to achieve the goal of peaceful society and public order. As a result, those regulations in National Security Act are unconstitutional. Meanwhile, this article finds that there are many drafts in Legislative Yuan which aim to modify or abolish the mountain regulation in National Security Act. After analyzing those drafts in detail, this article finally discuss the court's opinion about the case. This article suggests, the Taiwanese aborigines meet the exception clause that they don't need to apply for permission of entering into mountain, the public services of the Forestry Bureau of Executive Yuan do have the competent to inform people to leave, and because of the draft of abolishing mountain regulation in National Security Act have already met consensus in Legislative Yuan, the court could declare that those people have affirmative defense, there is a legal justification beyond code, that is, the trial ends in acquittal.