新冠肺炎對民主法治國之挑戰及其回應──以疫情緊急應變機制為觀察重心

Challenges of COVID-19 to Democracy and the Rule of Law: Focus on Normative Regulation of Emergency

國家防疫體系能否以民主及法治的方式克服新冠肺炎疫情的考驗，被認為是民主與獨裁體系制度競爭的一環；新冠肺炎所引發的緊急事態，因此可認為是民主國與法治國的試金石。然而，新冠肺炎疫情自2020年初發生至今，我國環繞於中央流行疫情指揮中心而建立的防疫緊急因應體制，卻不斷遭受違憲與違法的質疑。行政部門在防疫期間曾作成之對人民基本權影響重大的防疫措施，主要以防疫措施概括條款為其規範基礎，該防疫措施概括條款亦被質疑違反法律明確性與法律保留原則。針對前述對我國防疫緊急應變體制合法性的疑問，本文將著眼於疫情例外狀態的憲法拘束、中央疫情指揮中心組織權限的合憲性檢驗，以及防疫措施概括條款相關法治疑問等防疫體系的結構性問題，進行分析與檢討。此外，本文將參考德國為因應新冠肺炎疫情而建構的特殊防疫模式，為我國防疫緊急應變體制提供改革建議。

Whether the national epidemic prevention system can overcome the test of the new crown pneumonia epidemic in a democratic and legal way is considered to be a part of the competition between democracy and dictatorship systems; the emergency caused by the new crown pneumonia can therefore be regarded as a touchstone for a democracy and a rule of law. However, since the outbreak of the new crown pneumonia epidemic in early 2020, Taiwan’s epidemic prevention emergency response system established around the Central Epidemic Command Center has been continuously questioned as unconstitutional and illegal. During the epidemic prevention period, the administrative department has made anti-epidemic measures that are effective for the people of the whole country and have a significant impact on the basic rights of the people. The main normative basis is the general clause of epidemic prevention measures. The general clause of epidemic prevention measures has also been questioned as violating the clarity of the law with the principle of legal reservation. In response to the aforementioned doubts about the legitimacy of my country’s epidemic prevention emergency response system, this article will focus on the constitutional constraints of the epidemic exception state, the constitutionality test of the organizational authority of the Central Epidemic Command Center, and the legal issues related to the general provisions of epidemic prevention measures. In addition, this article will refer to the special epidemic prevention model constructed by Germany in response to the new crown pneumonia epidemic, and provide suggestions for the reform of my country's epidemic prevention emergency response system.