監獄受刑人權利救濟研究

過去受刑人之人權並不被重視，大眾認為必須透過嚴刑峻罰、隔離，方有辦法保障社會共同體之安寧。而監獄則單純被認為是執行刑罰之場所，民眾則認為在高牆之後的世界，是神祕、壓抑之處所。然而事實上，現代監獄除為執行刑罰之場所外，更具有施以再社會化之矯正功能。因繼受德國、日本法制，我國行政法學說及實務長期受到特別權力關係影響，認為公務員、學生、軍人、受刑人無法主張基本權利。然而隨著實務改變見解、學說批評，該理論似乎逐漸消失於法制中。但令人遺憾的是，有關受刑人權利探討，遲至近幾年才有較多討論與突破。依照現行監獄行刑法之規定，受刑人僅能以申訴作為救濟管道，並無外部司法救濟途徑。在民主國家中，如此不合理之限制，猶如讓部分國民生存於人權荒漠中，成為一大遺憾。畢竟受刑人入監執行，乃在剝奪其人身自由與集會結社等權利，並非全盤剝奪其他自由權利。幸虧在大法官第755號解釋後，打破此一不平等局面，回復受刑人之權利。在注重人權的民主社會中，受刑人之人權議題不應被漠視，然而究竟應保障到什麼程度、制度如何設計，則又是另一需要討論之議題。希望藉由本文討論之相關學說論述、現行制度檢討、修法草案討論，提出未來獄政改革之具體建議。

關鍵字

特別權力關係；監獄行刑法；受刑人；矯正機關；基本權利；訴訟權

並列摘要

In the past, the human rights of the inmates were not taken seriously, and the public believed that they must be punished and segregated through severe punishment and isolation, so that there were ways to ensure the security of social community. Prisons are simply considered to be places to carry out punishment, and the public believes that the world behind the high walls is a place of mystery and repression. However, in fact, the modern prison not only serves as the place of executing penalty, but also has the function of re-socialization. Due to the influence of the German and Japanese legal systems, our country's Administration Law treats theory and practice have been influenced by "das besondere Gewaltverhältnis" for a long time. Furthermore, our law scholars and judicial sentences claim that civil servants, students, servicemen and prisoners cannot claim fundamental rights. However, with the change of practice of opinions, theoretical criticisms, the theory seems to gradually disappear in the legal system. Unfortunately, it is regrettable that there have been more discussions and breakthroughs on the rights of the prisoners in recent years. According to current Prison Act’s regulations, if an inmate has opposition to accept prison rules, he can only appeal to the inspectorial officials via prison's warden, and there are no external judicial remedies. In a democratic country, such unreasonable restriction is great pities for making some citizens survive in the desert of human rights. After all, the target of execution is depriving the freedom of physical, association and assembly rights, not other human rights. Fortunately, after the Chief Justice Interpretation No. 755, this inequality was broken and the right of the person sentenced was restored. In a democratic society that focuses on human rights, the human rights issue of the inmate should not be ignored, but the degree to which the system should be guaranteed and how the system is designed is another topic that needs to be discussed. I hope that through the discussion of relevant theories, the review of the current system, and the discussion of the draft amendment, I can put forward specific suggestions for future reform of the prison.