法律與政治之間：首長維安與人民意見表達衝突之研究

近期人民或特定團體為突顯其訴求，無論係事前依集會遊行法申請主管機關核准舉辦集會遊行，或是緊急性與偶發性集會遊行，意見表達對象多係針對總統、副總統及行政院院長，或是針對總統府、總統官邸及行政院等重要官署突襲衝撞，以獲得社會大眾關注，進而逼迫相關主管機關妥協讓步。在學術上論述保障人民意見表達之文獻甚多，但多未探究「首長維安」與「人民意見表達」兩者法益衝突時，應如何評價。本文認為當人民向政府首長表達不滿訴求時，實務上都潛藏著暴力因素在內，維安人員會採取一定因應措施，但從歷年首長維安事件分析，不乏維安人員維安手段遭質疑過當干涉、違反比例原則等批判聲音，因此希望透過本文研究，建構首長維安與人民意見表達衝突時，首長安全法益、人民意見表達權力及維安人員法定責任等3者如何在符合比例原則的基礎上平衡共存。經過本文研究大致可以了解，即便首長安全係屬具有憲政高度之國家安全範疇，仍然必須遵守法治國基本原則之要求，主管機關負有積極性義務去保障人民意見表達之自由，不應動輒以維安、特種勤務之名就予以干涉、限制，縱然有影響公共秩序之情事，也需要審酌其意見表達之內涵是否具有實質違法性，否則仍屬言論自由保障範疇，而阻卻違法。據此，本文提出4點研究發現：1.首長維安與人民意見表達衝突最適切之維安運用模式-「看得到、聽得到、打不到」；2.有利公益之政治言論縱造成妨礙交通或影響公共秩序亦須從利益衡量去探究實質違法性；3.首長維安與聚眾陳抗競合之執法受首長政治決斷影響；4.行政院院長維安法律授權不足。最後，本文提出4點建議：1.特勤主管機關宜尊重警察編組應處聚眾陳抗之專業；2.主管機關宜審慎評估追訴民眾意見表達相關法律責任之必要性；3.以同理心互相尊重避免過多政治考量；4.行政院院長納入特種勤務條例之安全維護對象。以期強化首長維安之專業性，使維安手段更能符合民主時代法治國基本原則之要求。

關鍵字

首長維安；特種勤務；國家安全；總統；言論自由

並列摘要

Recently, the public or certain groups tried to express their opinions by protesting and body contact against the president, the vice president and the premier to get the attention from the public and to force the authorities to compromise with them, no matter if they were approved to assembly and parade by the authorities, or out of unexpected major emergency. There were many pieces of literature about expressing people’s opinions, but not about how to evaluate the conflict of interest between “the security of the head of state” and “the freedom of expression”. When the public tried to express their complaints against the head of state, which indicated the potential violence factors, the security personnel would take countermeasures correspondingly. With the analysis of the security events in the history, there were questions about countermeasures which were over intervening and violating the principle of proportionality. Therefore, the study showed how the security of the head of state, the freedom of expression and the legal responsibilities of the security personnel balanced on the basis of the principle of proportionality when there were conflicts between them. After the study, we realized that even though the security of the head of state belonged to the national security, the constitution level, the basic principle of the rechtsstaat should be followed. The authorities had proactive obligations to protect the freedom of expression, rather than to intervene and repress in the name of security or special guard duty. If there were incidents to jeopardize the public order, the intention of expressions, which was protected by the freedom of the speech, should be reviewed to examine its substantial illegality. For this reason, the study found that:1) The best practice to deal with the conflicts between the security of the head of state and the freedom of expression was “people can see and hear from them but not within touchable distance”. 2) It should be reviewed that the political speech which was beneficial to the public interests hampered the traffic and the public order to examine its substantial illegality. 3) The conflict between the security of the head of state and the law enforcement of the protest march was influenced by the head's political decision. 4) The authorization of the law regarding the security of the Premier was insufficient. At last, the study suggested that:1) The authorities of the special guard duty should give way to the police profession to deal with the conflicts. 2) The authorities should evaluate the necessity to prosecute the public for the legal responsibility of the expression. 3) It is recommended to respect each other with empathy and avoid excessive political considerations. 4) The Premier was suggested to be one of the security subjects in “the Act of Special Guard Duty”. The suggestions were to improve the professionalization of the security of the head of state while the countermeasures of the security were in line with the basic principle of the Rechtsstaat in the democratic era.