社會秩序維護法修正評析——兼論「社會秩序維護法」之存、廢

Analyzing the Amendment Made to the Social Order Maintenance Act - Also Profiling whether the 'Social Order Maintenance Act' should be Preserved or Abolished

社維法自80年6月29日公布（80年7月1日生效）施行後，部分條文被宣告違憲1或有違反人權兩公約之虞，曾於99年5月19日、100年11月4日歷經二次微幅修正，衡酌當前急遽變化之社會現象，政府機關行政職能擴張，法律思想及法治狀況均有大幅進步，部分條文構成要件欠缺明確，不合時宜，不敷目前社會之需要，不符當今法學思潮，諸多條文牴觸其他法令，且有不合理或相互衝突競合之處，亟待通盤檢討修正，以符時需。有論者主張我國社維法應予保留之理由，係考量社維法近年又有復活跡象，除對新興違序行為，具有補充與防漏功能；此外，考量法安定性及避免法律空窗期，社維法仍具有階段性之存在保留之價值。另有論者主張我國社維法應廢除之理由，有與行政罰法衝突競合、紊亂司法制裁體系、救濟（補償）程序保障不足、增加司法負擔，耗費司法資源等理由。社維法無論存或廢，利弊互見，其存在須有存在之價值，而廢除亦要有廢除之理由。其存、廢實有必要進一步比較分析及深入探討，以供未來社維法修法之參考。

The Social Order Maintenance Act has on May 19, 2010 and November 14, 2011 undergone two minor amendments since it was on June 29, 1991 initially promulgated (and took effect on July 1, 1991) with concerns that some of the provisions were pronounced to run against the constitution or reach the dual human rights conventions. By weighing the rapidly evolving social phenomena at present, the government agencies' administrative power is expanding, the legal awareness and political status have also progressed significantly, rendering the critical makeup elements of some provisions to lack concise clarity and also deemed outdated to meet the present social needs, and the current academic trends. With many of the provisions deemed to conflict with other peripheral laws and regulations, and that some are also deemed as irrational or mutually conflicting, there is a pressing need for an overall review and amendment of the legislature to better meet the need of the present time. The reason some critics assert that Taiwan's Social Order Maintenance Act need to be preserved rests on the concern how the Social Order Maintenance Act is showing signs of revival in recent years, as it offers supplementary and loophole mending functions to some of the emerging disorderly conducts; moreover, in consideration of legal stability and avoiding a legal window period, there is still value to preserve the Social Order Maintenance Act for its incremental mission. Moreover, the reason that some other critics argue how Taiwan's Social Order Maintenance Act ought to be abolished lies in how it conflicts yet coincides with the Administrative Penalty Act, as it only stands to disrupt the judicial system's penal system and grievance (compensatory) proceeding that lacks proper safeguard but only adds to the judicial burden, and depletes judicial resources. There are pros and cons in terms of whether the Social Order Maintenance Act ought to be preserved or abolished, while there should also be certain merit why it should be preserved, and also a just cause why it should be abolished. This prompts the ultimate dilemma in terms of how best to further compare, analyze and further delve into examining the grounds for preserving or abolishing the legislature, which will offer some useful references in amending the Social Order Maintenance Act in the future.