我國海岸巡防署海岸檢查行為之研究
—以行政調查與刑事偵查之交錯領域為中心—

海岸巡防法第四條賦予海岸巡防機關查緝走私、防止非法入出國之任務，為達成此項行政任務，巡防機關人員得依海巡法第五條行使對進出通商口岸、非通商口岸之人員、船舶、車輛或其他運輸工具所運載之人員、物品等有正當理由認有違法之虞時實施檢查，且必要時亦得依海岸巡防法第七條於最靠近進出海岸之交通道路，實施檢查；此項職權，即如同警察勤務條例第十一條第三款規定之「臨檢」，在行政法上，被置於行政調查的概念下來討論，而在臨檢的過程中，一旦發現有犯罪跡象，海岸機關即必須為必要之處置（海岸巡防法第九條第二款），此時所涉及的便不再是單純的行政任務，而是涉及調查已發現犯罪的司法任務，換言之，臨檢雖具有行政調查之色彩，然一旦於臨檢的過程中顯露出犯罪跡象時，海岸巡防人員旋即進入到司法偵查的範圍內，必須受到刑事訴訟法約束，而不再是行政法的範疇，茲有疑問的是，如何區分海岸巡防人員所為之檢查行為究為行政調查，抑或司法偵查，亦即這兩種不同法規範的行為，其交錯之界線為何、如何轉換、轉換的效果等，實應逐一探討，本論文即以此兩種不同屬性檢查行為及彼此間之交錯為範圍，從基礎理論出發，並置重點於交錯前後之性質探討。論文之研究方法在第二章以歷史沿革分析之方式導引讀者瞭解海岸巡防署，使對各組織及其執掌有一基礎認識，俾能清晰的瞭解海岸與海域執法之差異，第三、四章基本理論部分，是以文獻分析法蒐集國內教科書、政府相關報告文獻、各大圖書館收藏之法律期刊、論文等予以研析，並參考外國法制及文獻做比較法之研究，以補我國在討論此議題之不足，另提出相關實例作為海岸巡防機關之檢查實務呈現，有利於法律之判斷與審查，同時能與第五章探討檢查行為性質時作鏈結，採用歸納分析法，逐一用法律基礎理論抽絲剝繭，為檢查行為作定性及批判，以得到較佳之結論與建議。第六章下結論時，係以目的、人民受侵害程度、發動者、對象特定等標準來說明刑事偵查與行政檢查的區別實益何在。並依依筆者本身長年從事於海岸巡防事務之實務經驗與所學的法學智識與理論，配合現行海岸巡防勤務之重點做出訂立「海岸巡防機關人員職權執行法」及修改「海岸巡防署組織法」之建議。

關鍵字

刑事偵查；行政調查；海岸巡防署

並列摘要

According to article 4 of Coast Guard Act, coast guard authorities are entitled to seize smuggling and prevent illegal immigration. In order to carry out their mission, the enforcers from coast guard authorities shall follow article 5 of Coast Guard Act to inspect the people, boats and vehicles at commercial ports and non-commercial ports and the people as well as articles carried by other transportation vehicles when there is a reasonable doubt. Also, if it is necessary, they shall comply with article 7 of Coast Guard Act to do the inspection at the nearest traffic road from the coast. Such authority is like that of “roadside check” regulated in paragraph 3 of article 11 of The Statue Governing Duties Of The Police. As far as administrative law is concerned, this issue shall be discussed under the concept of administrative investigation. In the process of the roadside check, once any criminal sign is spotted, coast guard authorities shall take immediate measures to deal with the situation (as per paragraph 2 of article 9 in Coast Guard Act). At this time, beyond the administrative mission, it has already been extended to the judiciary mission to investigate the spotted crime. In other words, even though the roadside check is kind of administrative investigation, yet once the crime sign shows up in the roadside check process, coast guard enforcers shall immediately step into the criminal investigation. Thus, it is no longer limited to the issue of administrative act, instead, the investigation is bound by the code of criminal procedure. The problem is how to define the investigation behavior conducted by the cost guard enforcers. Is it the administrative inspection or criminal investigation? Where is the border for the behavior between the administrative inspection and criminal investigation? How shall they transform and what are the transform effects? All the issues shall be literally probed. Based on the basic theory, this paper uses the two different attributes of investigation behavior and their alternation as the scope and focuses on the characteristic investigation during pre and post-alternation. As indicated in chapter 2, this paper analyzes the historic profile to guide readers to better understand Coast Guard Administration, its organizations, its tasks and its groundwork, so they can articulately distinguish between coast and sea law enforcement. Chapter 3 and 4 are for basic theory in which documentary analysis is used to analyze the data collected from local textbooks, government’s related research papers, law periodicals and other papers. In addition, foreign statutory system and literature are also referred for comparison, so as to make up for the deficiency we have in discussion of this issue. Furthermore, living examples are brought up to illustrate the investigation made by coast guard authorities. It will not only help legal judgment and investigation, but also link with chapter 5 to explore inspection behavior characteristics. Inductive analysis is used to literally analyze the issue with legal basic theory so as to define and judge the inspection behavior and get better conclusions and suggestions. Chapter 6 is the conclusion. It uses the standards of objectives, the degree that people are infringed, instigators, specific target to elaborate on the difference between criminal investigation and administrative inspection. With the practical experience that the author has garnered from his long-term involvement in coast guard affairs and the legal intelligence as well as theories he has learned, the recommendations of formulating “The Authority Enforcement Law Of Coast Guard Enforcers” and revising “The Organization Act Of Coast Guard Administration” have been made to collaborate with the key points of current coast guard affairs.