日本現代戒嚴法制之研究──武力攻擊事態及存立危機事態對處法逐條詳論（上）

Study of the Modern Martial Law System in Japan－A Detailed Discussion One by One in the Act of Coping Measures of Armed Attack and Survival Crisis Situation

世人多「重常法而輕變則」之研究，特別是研究非常時期有關變則的戒嚴法制著作，更是寥寥無幾。若有，往往是負面的論述多於正面的論述。有云戒嚴法乃是「撥亂反正」之法律，亦是非常時期恢復國家、憲法秩序的最終手段。本文所稱日本現代戒嚴法制，在時間軸上係以日本戰後於2003 年立法通過，較現代、先進的武力攻擊事態對處法及2015 年修正追加的存立危機事態為研究重點。在內容上則以排除適用傳統戒嚴法制有關自然災害、人為事故與內亂等非軍事性質即所謂狹義的國家緊急權之行使，最大的特徵在於除注重傳統戒嚴法制排除外敵侵害之措施外，同時兼顧現代憲法保護國民的受害對處措施。常云「人民的幸福，乃是最高的法律」，此乃本文論述之主要意旨。

Most people study common law and despise the law of the emergency period, especially the study of martial law in the emergency period which there are very few books. If so, there are often more negative statements than positive ones. It is said that the martial law is the law to“bring order out of chaos”, and it is also the ultimate means of restoring the state and constitutional order in emergency period. Also known as Japan’s modern martial law, on the timeline, the research focuses on the more modern and advanced armed attack situation passed post-war in 2003 and Act on coping measures to deal with the survival crisis situation that was revised and added in 2015. In terms of content, it excludes the exercise of the so-called narrow national emergency powers beyond the non-military nature of natural disasters, man-made accidents, and civil strife in the traditional martial law. The biggest feature is that in addition to focusing on traditional martial law to exclude foreign aggression, it also takes into account modern constitution to protect citizens from harm. Therefore, it is often said that“the welfare of the people shall be the supreme law”, which is the main purpose of this article.