庇護權與難民法制——從歐盟與德國相關法制出發，檢視我國難民法草案

Right to Asylum and Refugee Laws: A Review of Taiwan’s Refugee Bill with Reference to Related EU and German Laws

移民或難民係人類歷史的一部分，其法政策與立法始終是與國際關係、移入及移出國之政治、經濟情況與社會制度的涵納能力有關，因此在法規範上的具體形塑也體現出其複雜、變動的面向。難民與移民不同之處在於，後者著重在於移民調控與管制，而難民強調的是保護及人道居留，即便最後認定駁回庇護申請或非屬難民身分，在申請過程中仍享有暫時之停留權利與一定的社會給付。作為世界上少數尚無難民法的國家，我國迄今仍無一套完整且符合人道待遇的庇護或難民法，相關制度仍亟待研議與立法。本文分析歐盟及德國之庇護與難民制度，特別是集中於分析歐盟庇護法制、國際難民保護制度以及德國基本法庇護權等實體法面向；最末則就我國難民法草案加以回顧，以收比較借鏡之效，尤其著眼於非自由地區的非典型難民型態、庇護及難民資格之要件設計、立法模式的選擇、行政程序與法院的審查事項，居留後的整合事項等面向略作檢視，以期待能對於後續的難民法立法有所貢獻。

Immigration and refugees seeking asylum are part of human history. The legal policy and laws related to immigration and asylum are always in connection with the international relationship, the political situation, economic situation, and the capacity of the social system of the immigration countries and emigration countries. Therefore, the related laws are often complicated and subject to changes frequently. The difference between the refugee and the immigrant is that the laws for immigrants are focused on their regulation and control, while the laws for refugees are focused on their protection and humanitarian residence. This means even if the asylum applications are rejected or the applicants are considered not qualified as refugees, they still have temporary rights to stay in the country and to receive certain social benefits during the application process. As one of the few countries that does not have refugee law, Taiwan does not have any asylum law or refugee law that is complete and consistent with humanitarian principles. It is necessary to research and start relevant legislations. This article analyzes the asylum and refugee legal regimes in the European Union and in Germany with a special focus on analyzing the substantive laws, such as the EU asylum laws, international refugee protection regime, and the right to asylum in German constitution. The last part of this article reviews Taiwan refugee bill and compare with and take a leaf out of the refugee laws of EU and Germany. The review includes addressing issues related to the non-typical refugees from mainland China, Hong Kong, Macao, setting the requirements on seeking asylum and the qualification of the refugee status, choosing the legislation model, the application review by the authority and the courts, approaches to integrate the refugees after they receive the permits to stay in Taiwan in the hope that this may contribute to the development of refugee legal regime in Taiwan.