警察處理妨害他人身體財產違序案件之探討

A Study on Social Order Offenses Constituting a Violation of Obstruction of the Person and Property of Others Handling by Police Officers

本研究針對警察處理社會秩序維護法妨害他人身體財產違序案件之現況、態樣及要件爭點，分別從違序案件之現象、要件及程序面進行研究，在現象面，違序案件漲幅高達620.13%，其中加暴行於人與互相鬥毆行為，近5年件數漲幅更高達912.39%，且社會秩序維護法第88條、第89條第1款、第91條第2款至第4款等違序行為，近5年幾近於無處分紀錄之現象；在違序構成要件面，應予釐清加暴行於人、互相鬥毆等暴力行為，與妨害秩序、傷害罪間之界限；無正當理由跟追之行為，倘涉及「與性或性別有關」，則與性騷擾防治法及跟蹤騷擾防制法間具有關聯性；污（毀）損與廢棄物清理法等較具爭議案件之觀點；在程序面，同一行為事實違反數個行政法上義務規定者，牽涉行政不法之競合，依行政罰法第24條第1項規定，依法定罰鍰額最高之規定裁處，採一行為不二罰原則，倘同一行為同時觸犯刑事案件，則採司法程序優先原則，爰依社會秩序維護法第38條刑事優先原則處理。本文提出對實務單位、教學與法律適用原則等4點建議，以作為警察機關及教學之參考。

In this paper, the approaches, including literature review, content analysis method and focus group discussion are adopted for carrying out the research. This study mainly focuses on the current situations, patterns and elements in controversy regarding social order offenses that constitute a violation of obstruction of a person's body and properties handled by police officers. Thus, the dimensions, including the phenomenon, elements and procedures in relation to the above mentioned offenses are explored and analyzed. The findings are described as follows. In terms of the dimension of the phenomenon, the number of social order offenses in violation of the obstruction of a person's body and properties has increased by as high as 620.13%. Among these offenses, the numbers of inflicting violence upon others and fighting have increased by 912.39% in recent five years. In addition, in recent five years, almost no punishment records have been made in accordance with Article 88, Article 89-1, as well as Articles 91-1 through 91-4 that specify certain social order offenses in the Social Order Maintenance Act. As to the dimension of constituent elements of social order offenses, it is necessary to clarify the boundaries between behaviors such as inflicting violence upon others and fighting and the offenses such as interference with public order and causing bodily harm. It' s also essential to clarify how the behaviors that involve 'sex or gender', that is, the elements constituting unauthorized temporary use of other's property and stalking another person without justifiable reasons are correlated to Sexual Harassment Prevention Act and Stalking and Harassment Prevention Act. Furthermore, the controversial viewpoints concerning the application of the Waste Disposal Act to dealing with damage (fouling) behavior should also be explored. From the dimension of procedures, the author considers that the same fact which violates against several different duties under administrative law at the same time involves the competition of administrative illegality. In accordance with Article 24-1 of the Administrative Penalty Act, the above behavior shall be punished with the highest amount of the fine prescribed by law. In this case, the principle of 'protection against double jeopardy' shall apply. However, if that same fact simultaneously constitutes a criminal offense, it shall be punishable under the criminal law, where Article 38 of the Social Order Maintenance Act specifies that the criminal law overrides shall apply. Based on the findings, five suggestions falling into three dimensions containing applicable laws and principles for practices and teaching are proposed here so as to serve as references for police authorities and academic institutions.