論警察保護私權任務與職權

Discussion on the Mission and Powers of Police Protection of Private Rights

在私法自治之架構下，基於警察之公共性，警察任務係在維持公共安全與秩序，其與公安秩序無直接關係之民事法律關係原則上不干涉。又依民法第151 條「為保護自己權利，對於他人之自由或財產施以拘束、押收或毀損者，不負損害賠償之責。但以不及受法院或其他有關機關援助，並非於其時為之，則請求權不得實行或其實行顯有困難者為限。」規定，容許私權當事人得於時機緊迫之情況下實施自助行為，以保全其債權。惟如債權人不及受到法院援助之際，特別是遇例假日法院不上班的期間，而向其他有關機關請求援助，其請求權又有不能實行或實行顯有困難之情形時，債權人如何尋求其他有關機關提供援助？該他有關機關又當如何援助？此種情形，國家能提供何種權利保障措施？方能濟法院所不及。
上開民法第151 條規定，係參考德國民法第229 條規定之立法例而來。然在德國除民事訴訟法設有假扣押、假處分程序提供法院的援助外，在各邦警察法中，甚至是聯邦警察法，也大多容許警察在一定條件之限制下，負有援助保護私權之義務，並授予警察採取具體的保護私權援助措施，私權保護救濟體系堪稱完備。但反觀我國警察法或警察職權行使法，似欠缺完整的保護私權等制度。爰本文乃以警察保護私權任務與職權為研究對象，探討國家權力獨占下之自助權利，其次檢討警察對保護私權提供援助之容許性，比較我國與德國警察法上保護私權任務與職權，檢討評析警察對法院任務之關係，期能釐清警察協助保護私權之任務與權責，俾有助於合理化警察任務與職權之健全發展。

Within the framework of self-government under private law, in accordance with the public nature of the police, the police are responsible for maintaining public security and public order, and generally do not interfere with private legal relationships that are not directly related to public security and public order. According to Article 151 of the Civil Law in Taiwan, “In order to protect his rights, a person who restrains, seizes, or destroys the liberty or the property of another is not liable to compensate for any injury arising therefrom, provided the assistance of the court or other relevant authorities could not be obtained in due time and there was a fact that if the person did not act immediately, the exercise of his rights would be rendered impossible or manifestly arduous.” The regulation allows one of the parties with private rights to implement self-help in urgent situations to safeguard their obligatory rights. However, if the creditor cannot get court protection in time, and the credit or does not seek assistance from other relevant agencies, it may not be possible or difficult to apply the right of claim. What type of protection can the state provide when the court cannot act in time?
The abovementioned regulations of Article 151 of civil law refer to the provisions of Article 229 of the German Civil Code. However, in addition to the provisional attachments and the preliminary injunctions of judicial assistances in German Code of Civil Procedure, police laws in most states also allow the police to provide assistance in protecting private rights under limited conditions. These court remedies for the protection of private rights could be seen as perfect. Unfortunately, there does not seem to be any mission provisions to protect private rights in the Police Act and the Police Power Exercise Act in Taiwan. Accordingly, this paper addresses the issue of the mission and powers of the police to protect privacy rights. First, study the right to self-help under the exclusive authority of the state. Secondly, review the admissibility of police assistants to the protection of private rights. Thirdly, compare by protecting private rights to police missions and powers in Taiwan and Germany. And take the comparison a good lesson to review the relationship and limits between police missions and the court in Taiwan. Finally, it foresees that we will be able to clarify the missions and competence of police assistance for the protection of private rights, which will help rationalize the appropriate development of police missions and powers.