集會遊行法中行政管制模式之再探──以偶發性及緊急性集會遊行為中心

Reexaming the Administrative Regulatory Model in the Assembly and Parade Act:Centered on Occasional and Emergent Assembly and Parade

集會、遊行自由作為憲法明文列舉之基本權利，其在民主發展歷程中，扮演重要角色，於司法院釋字第445號及第718號解釋中，皆曾針對偶發性或緊急性集會、遊行之管制，闡明所應遵循之界限，然而，集會遊行法至今仍尚未有相應之修正。觀察行政院及立法院所提出之集會遊行法修正草案，雖皆有志一同地將事前許可制改為事前報備制或自願報備制，但此一修正是否即已符合憲法保障偶發性及緊急性集會、遊行之意旨，仍值得持續探究。首先，本文預計透過憲法之觀點，釐清集會遊行自由作為憲法上基本權利所具備之意義與功能；其次，則是針對現行集會遊行之相關法令進行盤點，呈現目前我國就偶發性及緊急性集會、遊行之行政管制模式及其可能衍生之爭議，並聚焦於三個議題進行討論，包括禁制區之劃設、負責人之認定及事前管制之侷限，同時關注各修法草案之內容及其差異；最後，將提出個人之想法及建議，包括再次確認集會、遊行法制之核心價值，仍待強化之法律明確性及法律保留原則，正視集會、遊行地點之憲法意義以及事前協力義務之鬆綁等，除呼應司法院大法官相關釋字所揭示保障集會遊行之意旨，亦期待得提供未來修法參酌。

The freedom of the assembly and parade act as the fundamental rights enumerated in the constitution plays an important role during the history of democratic development. In Judicial Yuan Interpretation No.445 and No.718, both of them used to expound on the boundary and limit which should be followed for the regulation of occasional or emergent assembly and parade; however, the assembly and parade act still have no corresponding amendment so far. The amendment of the assembly and parade act which was suggested by the Executive Yuan and the Legislative Yuan both changed the prior approval system to the prior reporting system or the voluntary reporting system, but whether the both amendment editions accorded with the constitutional gist of protecting the occasional and emergent assembly and parade, this is still worth researching. First, from the view of the constitution, this article aims to clarify the meaning and functions of freedom of the assembly and parade as fundamental rights in the constitution. Second, take stock of the current assembly and parade act to present the current regulation structure of the occasional and emergent assembly and parade as well as the relevant disputes from which it might be derived. Three selected topics for the occasional and emergent assembly or parade will be discussed: the restricted areas of holding assembly or parade, the recognition of the responsible person and the limits of preventive regulations. At the same time, the current important amendment’s content and their differences will also be compared. Finally, this article will put forward personal observations and suggestions, including confirming the core value of the legal system of assembly and parade, intensifying the principle of clarity and definiteness of law and statutory reservation, facing squarely the constitutional meaning of the held locations for the assembly and parade, and slightly untie the prior obligation of cooperate. Through the research, in addition to responding to the gist of the assembly and parade that the Judicial Yuan interpretations have revealed to indemnify and look forward to providing the reference for amendment in the future.