言論事前審查之研究--以醫藥廣告為中心

劉文萱

doi:10.6342/NTU201803752

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言論事前審查之研究--以醫藥廣告為中心

A Study on Prior Restraint of Speech --Focus on Advertisement for Medicines, Medical Treatment and Medical Devices

劉文萱 , Masters　　Advisor：劉靜怡　　

繁體中文 DOI： 10.6342/NTU201803752

言論自由；商業廣告；事前審查；藥品廣告管制；醫療器材廣告管制；醫療廣告管制； Freedom of speech ； commercial advertisements ； prior restraints ； medicinal advertisements regulations ； medical devices advertisements ； medical treatment advertisements

Abstract │ Reference (98) │ Altmetrics

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According to Judicial Yuan Interpretation No.414, the Justices said that the level of protection to commercial advertisement was different from another types of speech, as a result, the prior restraint of medicinal advertisement was constitutional. However, many years later, the Justices made a new judicial review standard of prior restraint in Judicial Yuan Interpretation No. 744, the Justices pointed out that the prior restraint of cosmetic advertisement was a regulation that interfered the freedom of free speech seriously, and it was unconstitutional. This standard was so definitely different from the standard of Judicial Yuan Interpretation No.414, and there are many discussions based on Judicial Yuan Interpretation No. 744 after it was issued, including the discussion of the level of protection to commercial advertisements and prohibition of prior restraint. 
Prior restraint is a government action that may prohibit speech、publish or other expression before it can take place , and it is the most severe regulation on speech because it will lead to the consequence that speakers exercise self-censorship to avoid the punishment.  As a result, in many countries, any system of prior restraint is prohibited and bear heavy presumption against its constitutionality validity, with certain limited exceptions. In other words, prior restraint is principally unconstitutional except it meets the following requirements: the clarity of law、the necessity of means and due process protection. Besides, the Justices also affirmed that prior restraint bear heavy presumption against constitutionality validity in Judicial Yuan Interpretation No. 744. However, it is a problem whether this standard is applied to another commercial advertisements case or not. 
Furthermore, there are other commercial advertisement regulations also in the form of prior restraint. This article focus on medicinal advertisement、medical device advertisement and medical treatment advertisement, because there are some similarity between the advertisement mentioned above and cosmetic advertisement. Through the following discussion, I try to analyze the purpose of prior restraint and whether the prior restraint of medicinal advertisement、medical device advertisement as well as medical treatment advertisement be unconstitutional under the standard of Judicial Yuan Interpretation No. 744.
Keywords：Freedom of speech, commercial advertisements, prior restraints, medicinal advertisements regulations, medical devices advertisements, medical treatment advertisements

Reference ( 98 ) 〈TOP〉

壹、中文
林子儀(1999)。《言論自由與新聞自由》。臺北：元照出版社。
許志雄(2000)。《現代憲法論》。臺北：元照。
李震山(2005)。《多元、寬容與人權保障－以憲法未列舉權為保障中心》。臺北 : 元照出版社。
林世宗(2005)。《言論新聞自由與誹謗隱私權》。臺北：自版。

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