論現行船員受懲戒處分之救濟制度設計

在法治國原則的檢視下，現行船員懲戒制度並未有明確法律依據，正當法律程序依據也相當薄弱，單以海事評復議規程限制人民的營業權，並非良策。大法官會議針對高度自律性的行業，已作成相關解釋，再再揭示依法行政、正當法律程序與有權利必有救濟對人民權利保障重要性，並提出應有走向。比較英、美、日國之法例，均有明確法典依據作為規範準則，可做為參考依據。對此，我國同屬自律行業之船員懲戒以不宜仍在未有授權規定，以行政命令性質為組織法規的評復議委員會作為懲戒機關的模式下繼續運作。宜在專業團體之自律與行政機關管理及公正司法審查間找到平衡點，以釋憲實務機關建立的分類基準，再輔以學者見解，以偏向會計師、建築師、醫師懲戒模式，建立一套符合法治的懲戒救濟途徑。

關鍵字

船員懲戒；海事評議；海事復議；懲戒措施；紀律法庭；特別權力關係

並列摘要

From the view of a country is governed by its laws, the current system of rules that governing the ”disciplinary offence” has lots of flaws. At first, the current procedure of rules that governing the ”disciplinary offence” does not have an underlying base that is supported by the current laws. Secondly, currently, when one is to follow a proper course of legal actions, there are few laws that one can pursuit; in most cases, the private sector deals with such complaint is to take each individual case by it's own circumstances. The Grand Justice has hold conference that specifically addressing the problem of self-governing organization such as this, where they point out the importance of the rule of law, due process of law, and the idea of ”Where there is a right, there is a remedy.” Related laws on this area used by USA, Britain or Japan have very clear reference to the respective laws prescribed by those countries, can be used as references for our system. The current system should be abolished and a more law-based system should be established to take over the current system. The new system should incorporate the expertise of the organizational need and fair judgments based by the current law to evolve a new and balanced system. This can be achieved by collecting various experts' opinions from different fields to build a more law-based system that governing the ”disciplinary offence”.

並列關鍵字

seaman disciplinary offence ； shipping inquiries ； appeal of shipping inquiries ； disciplinary measures ； discipline tribunal ； special authority relationship