兩岸人員遣返定型化機制變遷之研究
-蔡政府執政後前後之差異-

自1987年兩岸開放探親政策後，因當時大陸經濟生活狀況並不理想，在兩岸開放交流之後，台灣較為優渥之經濟及生活情形傳至大陸地區後，使許多大陸人民為了改善家庭經濟狀況，紛紛偷渡來台打工，且有逐年增加之情形，惟因當時海峽兩岸遣返大陸偷渡犯並無相關程序及機制，係採「原船遣返」及「軍用船艦」將非法入境臺灣之大陸地區人士送返，然時而發生重大事故，故為避免相關事故一再重演，兩岸政府透由「紅十字會」機制，歷經不斷協商確認相關人員遣返程序後，雙方代表於1990年9月11日至12日在金門簽署協議，以確保「人道與安全便利」的遣返原則，成為兩岸專門為遣返所簽訂的第一個定型化機制。 2008年馬英九當選中華民國總統，以「九二共識、一中各表」為兩岸政策核心，推動兩岸和平交流，使兩岸交流達到近60年來的高峰，人流往來更為頻密。尤以台灣積極開放大陸地區人民來台後，其交流模式更趨多樣化，亦衍生出不少社會治安問題，故兩岸又於民國2009年4月26日，由台灣「財團法人海峽交流基金會」與大陸「海峽兩岸關係協會」簽署「海峽兩岸共同打擊犯罪及司法互助協議」，以維護海峽兩岸人民權益及兩岸人民往來交流之秩序，此則為兩岸築基於「金門協議」之上，再為「遣返」所簽訂的第二個定型化機制。惟2016年新政府執政後，兩岸關係改變進入了新的「冷和」局面，故本文係盱衡兩岸關係發展情勢，探究兩岸有關遣返協議機制究係是否仍可維持，或須於協議機制外，另以新作法執行為題，期提出兼顧兩岸人民利益及人權之建議，即是本文研究探討之目的。

關鍵字

金門協議；九二共識；海峽兩岸共同打擊犯罪及司法互助協議；遣(接)返

並列摘要

Since the authorities in Taiwan and Mainland allowed people to visit their relatives who were on the other side of Taiwan Strait in 1987, a lot of mainlanders illegally immigrant to Taiwan to work. Because mainlanders started to know the economic situation and life in Taiwan were much better than the situation in the mainland, and the amount of illegal immigration was increasing year after year. At that time, there was no relative procedure and mechanism of the repatriation of people smuggled from mainland area to Taiwan area. The authority in Taiwan repatriated illegal immigrants back to the mainland by the original ship they took or military ships. However, severe incidents happened time to time. To avoid this kind of incidents, authorities in both side agreed to repatriate illegal immigrants via International Committee of the Red Cross. After constant negotiation of repatriation procedures, representatives of both parties signed the agreement in Kinmen on 11th to 12th September 1990. Ensuring humaneness, safety, and convenience as principal of repatriation, the agreement became the first standard repatriation mechanism signed by authorities in Taiwan and mainland. Ma ying-jeou won his presidency of the Republic of China in 2008. He set “the 1992 consensus” and “one China with respective interpretations” as the core concepts of his Policy across the Taiwan Strait, promoting peaceful exchange between Taiwan and mainland. Made the number of exchanges across two areas reached the highest peak in 60 years. The flow of people became more frequent, especially after Taiwan authority actively opened door to let mainlander visit Taiwan. The exchange activities became more diversification; it also spawned many social security issues. Therefore, to protect the rights and interests of the people on both sides of the Taiwan Strait and exchanges between people on both sides of the Strait, Straits Exchange Foundation and Association for Relations Across the Taiwan Straits signed Cross-strait Joint Fight against Crime and Mutual Legal Assistance Agreement on 26th April 2009. This is the second standard mechanism of repatriation signed by the two sides of the Taiwan Strait based on the "Kinmen Agreement". However, after the new government came in in 2016, the relation between Taiwan and mainland enter a new peace but cold phase. Therefore, this study overview the development of relations between two parties to explore if the mechanism of negotiating repatriation agreement can be preserved, or new method besides the mechanism of negotiation is needed. The purpose of this study is to propose a solution that takes into account the interests of the people on both sides of the Taiwan Strait and human rights.