國共內戰後期撤臺國軍拉伕行為之法律評價

蔡英文政府執政以來，轉型正義政策如火如荼地展開，並有《促進轉型正義條例》之研議，規範主體主要針對白色恐怖時期在臺灣之受難者，然而中國國民黨政府的威權迫害並非侷限在臺灣本島，尚包括國共內戰時期為迅速擴張部隊，在中國大陸地區以國家暴力手段強制人民從軍並掠奪民生物資，或戰略上實行焦土策略的各種迫害，各軍團命令紊亂，為迅速補充兵力致使強行抓兵事件屢見不鮮，這些拉伕而來的受難軍人於1949年隨著國軍來臺，與國民黨在臺生根，如今逐漸凋零，卻從未獲得一句道歉，至今中華民國政府也未曾正視這段歷史，遑論賠償問題。國家內戰時期濫用國家暴力強徵民力、物資等行為應如何評價，進而恢復歷史正義、處理賠償。本文嘗試以法律角度探討國家拉伕行為的性質及正當性，從當時的《兵役法》、行政法上特別權力關係、《憲法》上法律保留原則以及比例原則討論該等基本權之侵害，另探討該時期緊急狀態的適法性，授權立法者訂定處理、賠償之相關法案，提供請求權基礎，以探討目前轉型正義保護主體前開受難國軍軍人之缺憾。針對國民黨撤臺期間的拉伕行為，因歷史上的政治因素，縱然解除戒嚴，仍鮮少有國軍老兵願意提供相關史料，目前僅有口述歷史或小說、電影碰觸此議題，學術上研究文獻甚少，故本文研究方法以文獻整理為主，而針對國共內戰的背景事實則兼以兩岸文獻分析，以利釐清時間脈絡及整體結構對個案之影響。本文除了例舉並梳理國共內戰後期之個別案例之外，並輔以當時之法治背景，試圖提供非法遭拉伕之外省老兵在法律上之救濟管道，縱歷史的傷痛無法被彌補，仍然不允許政府毫無作為。

關鍵字

拉伕；兵役；兵役法；國共內戰；白色恐怖；轉型正義

並列摘要

Since the Tsai Ing-wen Administration came to power, the transitional justice policy has been carried out in full swing, and the Act on Promoting Transitional Justice has been drafted and passed. The Act mainly covers the victims in Taiwan during the white terror period. However, the authoritarian persecution of the Kuomintang government is not limited to the island of Taiwan. During the civil war between the Kuomintang and the Communist Party of China, for the rapid expansion of troops, there were countless uses of state violence to force the people to join the army, plunder civilian assets or the strategic implementation of the scorched earth policy in mainland China. The troops were often disorderly. Out of a concern for rapid replenishment of troops, there were many incidents of forced recruitment and involuntary drafts. These uprooted soldiers came to Taiwan with the Kuomintang in 1949 and had since taken root there. They are now gradually withering, but they have never received an apology. So far, the Republic of China government has not taken this history seriously. Let alone the issue of compensation. How to evaluate the abuse of national violence at conscription of civilian power and materials during the civil war, so as to restore historical justice and deal with compensation? This article attempts to explore the nature and legitimacy of the state's forced recruitment of military personnel from a legal perspective. Discuss the infringement of fundamental rights in the Military Service Law, in the special power relations theory of the administrative law, in the constitutional principle of legal reservation and proportionality, and discuss the legality of the state of emergency during this period. The purpose of this study is to assist legislators to formulate relevant bills for handling and compensation, so as to provide a basis for claims. It will explore the shortcomings of the absence of suffering mainlander soldiers in the protected target groups of the transitional justice. Seeking justice for victims of the Kuomintang's forced miltary recruitment during its retreat to Taiwan faces the challenge of scarce evidence, as few veterans of the National Army were willing to provide relevant historical materials even after the martial law had ended. At present, only oral history or novels and movies touch this topic. There are few academic research documents, so the research method of this article focuses on literature collation, while the background facts of the Chinese Civil War are also analyzed by cross-strait documents to help clarify the historical context and the overall structure of the cases. In addition to citing and sorting out individual cases in the late period of the Chinese Civil War, this article is supplemented by the rule of law at that time, trying to provide legal relief channels for Mainland veterans who were illegally ravaged. Even the pain of history cannot be compensated, the government must not be allowed to simply stand by and do nothing.