從基本人權的保障探討國民出境之限制──以入出國及移民法為中心

Discussion of Restrictions on Citizens Leaving the Country from Basic Human Rights—Focusing on Immigration Act

入出國及移民法之立法目的主要係以保障人權及落實憲法人民居住遷徙之自由，惟基於國家安全等因素，仍有禁止國民出國之規定，在此產生許多憲法基本權實踐之法律議題。本文首先探究入出國與基本人權，針對相關憲法基本權之範疇、司法院大法官之解釋以及國際人權公約等深入論述，並以此論述之基礎，檢驗基本人權之實踐，即針對入出國及移民法第5條與第6條所規定國民入出國之許可以及禁止國民出國之法律要件等深入探討。經本文探討認為，因應國際村時代等變化，有關無戶籍國民入國、停居留等限制規定，實有一併檢討之必要。有關特別法部分，針對稅捐債務的保全與執行，應以稅捐稽徵法第24條第3項以下限制出境的金額門檻、財產保全優先等要件，作為發動限制住居處分之內在要件，並就限制住居已達五年之案件，主動或經申請而終止限制住居的執行。另在特別狀態下之禁止出國，如防治疫情之傳染病防治法等，不得對人民居住遷徙之行動自由造成過度之干預限制，必須合乎比例原則。針對干預人民基本權之措施，應採法律保留原則，應明確職權條款規範干預措施之必要性，以符合法治國保障人權之要求。

The legislation of Immigration Act is mainly to protect human rights and implement the Constitution's people's freedom of residence and movement. However, due to factors such as national security, there are still provisions prohibiting citizens from leaving the country, which raises many legal issues in the practice of the basic rights of the Constitution. Therefore, this article first explores entry and exit and basic human rights and provides in-depth discussions on the scope of relevant constitutional basic rights, the interpretation of the Justice Yuan Justice, and international human rights conventions. Based on this discussion, it examines the practice of basic human rights, that is, for entry and exit, and an in-depth discussion of the legal requirements for permission for nationals to enter and leave the country as well as prohibitions on nationals leaving the country stipulated in Articles 5 and 6 of the Immigration Act. After research and discussion, it is believed that in response to changes such as the era of international villages, it is necessary to review the restrictions on entry, stay, and residence of unregistered nationals. Regarding the special law section, regarding the preservation and enforcement of tax debts, the monetary threshold for restriction of departure under Article 24, Paragraph 3 of the Tax Collection Act, and the priority of property preservation should be used as the essential requirements for initiating residence restriction measures. In cases where the resident has lived for five years, the enforcement of the residence restriction shall be terminated voluntarily or upon application. In addition, prohibitions on traveling abroad under special circumstances, such as the Infectious Disease Prevention and Control Law to prevent and control epidemics, etc., must not cause excessive interference and restrictions on people's freedom of movement to live and move and must comply with the principle of proportionality. Regarding measures that interfere with people's basic rights, the principle of legal reservation should be adopted, and the terms of reference should be clarified to regulate the necessity of intervention measures, so as to comply with the requirements of the rule of law and the protection of human rights.