陸海空軍懲罰法適用不自證己罪原則之探討

陸海空軍懲罰法兼含實體與程序規定，違失行為人在此規範下，倘有主動向權責長官陳述違失事實或提供證據，來證明自己違失行為之義務，將面臨違反義務恐受不利之結果或自證違失而受懲罰之兩難抉擇窘境。這種人性的考驗，涉及憲法上人性尊嚴保障之議題。而不自證己罪原則乃憲法人性尊嚴核心價值的體現，本法得否自外於此核心價值而不適用，實有探討之必要。本文從廣泛性的探討不自證己罪原則之發展歷程、實定法之規範、行政法領域適用之爭執，以具體的分析本法之適用，並以案例導出問題之所在，期在個案適用上獲得適法性的支持。

關鍵字

不自證己罪原則；緘默權；拒絕證言權；違失行為；行政調查

並列摘要

There are both substantive and procedural rules in the Armed Forces Punishment Act, under the premise, if the wrongful person have to show the truth or evidence of the events to the chief of power initiatively, it will lead to a dilemma that the guy either receive negative effects from going against the duty or be punished because of self-incrimination, and that is such a humanity test related to the issue of human dignity protection in The Constitution. The privilege against self-incrimination is the core value of the human dignity protection in The Constitution, and it's worth to investigate that whether the value should not be applicable in the Armed Forces Punishment Act or not. This paper aims at widely exploring the development path of the privilege against self-incrimination, the rules of positive law, dispute about the applicability of administrative regulations and specifically analysis appliance of this law, and inferences the questions through cases in order to seek the appropriateness of each cases.