國際法下戰俘請求補償之研究

1949年日內瓦第三公約「關於戰俘待遇公約」第68條係戰俘請求補償之規範，自該條衍生出「戰俘依附國補償原則」，意義上係戰俘所依附國對於戰俘身體或財產方面給予補償之條約國際法規範。然而，在「西伯利亞長期拘留請求補償案」，日本最高法院駁回原告之請求，認為日內瓦第三公約無法回溯適用至該案發生於第二次世界大戰之事實，且該公約第68條尚不能反映出適用於第二次世界大戰時日本戰俘的習慣國際法規則，蓋因該條款內容欠缺國際普遍實踐且不能推斷有法之確信，執此，落實補償戰俘事項有賴於國內法之制定。經檢視我國相關法律制度與公法學者論著，補償戰俘之法理可自中華民國憲法與社會補償思維中導出，但在具體規範方面，我國僅訂有「國軍在臺期間作戰被俘歸來人員人事處理作業要點」，本文細審該行政規則，發現不論在適用條件與實質內容，均不足以涵蓋日內瓦第三公約第68條所蘊涵補償戰俘之範疇，此部分宜由立法者制定納入上揭條款精神與社會補償之完善規範。

The claims for compensation of prisoners of war (POWs) are based on the“Rule of compensation by the state on which the POWs depends”, which is derived from Article 68 of Convention relative to the Treatment of Prisoners of War (hereafter 1949 Third Geneva Convention). In legal sense, the Power on which POW depends undertakes the duty of compensation for the injuries and disabilities caused by the forced labour as well as for all other damage suffered during the detention and imputable to the Detaining Power. Nevertheless, in the Compensation for Japanese POWs Detained in The Union of Soviet Socialist Republics Case, the Supreme Court of Japanese denied both the retroactive applicability of the 1949 Third Geneva Convention, as well as of Article 68 ref lecting customary law applicable to Japanese prisoners of war from the Second World War. The Court held that this rule has not yet satisfied the requirements of general practice and opinio juris and had not been established as a rule of international customary law. Thus, the issue about compensation of POWs may be fulfilled by promulgating domestic law additionally. After examining the legal system of ROC and treatises of publicists, The Constitution and doctrine of social compensation may be seen as fundamentals for POWs who allege compensation during the detained time. As for the implementation, there is only“Regulations on Personnel Measures to Returned Captured Armed Force During Period of Government in Taiwan”as substantial law. This article analyzes that relevant regulation and concludes it does not have counter part to Article 68. Therefore, this article proposes that a special act comprising the jurisprudence of compensation of POWs embodied in Article 68 of the 1949 Third Geneva Convention should be promulgated by the legislative.