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題 名 | 海峽兩岸司法制度之比較研究=The Comparison and Study between the Judicial Systems of Both Sides of the Taiwan Strait |
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作 者 | 鄭正忠; | 書刊名 | 空大行政學報 |
卷 期 | 7 1997.05[民86.05] |
頁 次 | 頁97-129 |
分類號 | 589.1 |
關鍵詞 | 海峽兩岸; 司法制度; |
語 文 | 中文(Chinese) |
中文摘要 | 自民國三十八年,國民政府播遷來臺,迄今四十七年,回顧四十餘年來之兩岸關係,歷經軍事衝突、冷戰對峙時期,一直到民國七十六年,隨著臺灣地區政治社會日益民主,以及兩岸情勢的快速變遷,我政府毅然於七十六年十一月二日,宣布開放一般民眾赴大陸探親,而中共當局亦採取部分放寬措施,從此突破對立與隔絕,帶動兩岸民間社會、文教、法學及經貿等各方面之交流,將兩岸關係推入新的紀元--民間交流時期。面對兩岸接觸往來日益頻繁,經貿糾紛、法律問題不斷衍生的今日,吾人對中共在大陸地區長期有效統治下所建立的現行司法制度,實有積極認識、研究的必要,此為本論文研究之動機所在。以目前大陸地區的司法體系而言,基本上其司法權有四項內容,即審判權、檢察權、偵查權和司法行政權,依中共現行憲法和法律相關規定,人民法院是國家審判機關,行使國家的審判權;人民檢察院是國家法律監督機關,行使國家的偵查權;司法行政機關主管監獄、勞動改造、公證、律師等司法行政事宜,行使國家的司法行政權,各該司法機關分工負責,相互配合,互相制約,從而形成緊密結合的司法體系。本篇論文,除緒論外,首先針對兩岸分隔四十年來的司法組織架構體系,作完整的說明;其次,依序分別探討兩岸地區法院制度、檢察制度、公安 (偵查) 制度的分野, 以瞭解兩岸司法機關實務運作情形,最後再深入分析,比較兩岸司法制度之利弊得失,以期擷取雙方優點,改革司法,俾有助於雙方人民發生糾紛時,提供一個適當的解決途徑,此為吾人努力的重點。 |
英文摘要 | Forty seven years have passed since 1949, the year that the K.M.T. (the then ruling political party in Mainland China and current ruling party in Taiwan) government moved to Taiwan. When we look behind, during this past forty some years, we have found that the relationship between Taiwan and Mainland China actually has undergone the periods of military conflicts and cold war tensions. It was not until 1987, with the growing trends of democracy in both politics and society in Taiwan plus the fast changes of the situation between both hsides of the Taiwan Strait, that on November 2, 1987 the Govemment of the Republic of China declared the release of the long-term ban on its citizens' going to Mainland China for relastive visiting while at the same time, the China Communist's regime also loosened part of its regulations and administrations in this regard; thus the long-term segregation and tension was broken, impelling the exchanges and communications in the civilian level for both sides of the Tiawan Strait regarding social, cultural, educational, jurispurdent, economic and trading fields, and pushing the relationship between both sides into a new era "Civilian communication period". Due to the fact that currently the contacts between both sides have become more and more frequent and the trade disputes plus the judicial problems have gained their way, we have to actively understand and study the judicial system formulated under the longterm, effective rule by the Chinese Communists in Mainland China, Which is the very motive of the study for this thesis. Based on the present judicial system in Mainland China, there are, basically four branches in the contents of its judicial rights, namely the right of trial, the right of investigation, the right of inspection and the right of judicial administration. According to the relevant statutes in the Chinese Communists' Constitution and laws, the People's Court is the national trial institute and thus administers the right of trial for the nation; the People's Investigation Bureau is the supervising institute for the national laws, and thus administers the right of investigation for the nation, the Public Security and the National Security Institutes are the agencies for national security and protection, and thus administer the right of inspection for the nation; the Judicial Administrative Institute is in charge of the judicial affairs concerning prisons, labor reformations, public notaries, and lawyers, and thus administers the right of judicial administration for the nation. Each individual judicial branch is responsible for its own tasks, yet it has to correspond with and be bond by one another, and thus forms a compact and close judicial system. This thesis, except for its preface, first made a complete description based on the judicial organizational structure under the forty years' separation between both sides; secondly discussed the differences of the court systems, the investigation systems and the public security (inspection) systems respectively between both sides, in order to understand the practical operations of the judicial institutes on both sides. Finally, it made further analysis and comparison of the loss and gain in the judicial systems on both sides, so as to extract the forte from both sides, to reform jurisdiction and to provide a suitable solution when citizens from both sides come to disputes, which is the key point we should work hard for. |
本系統中英文摘要資訊取自各篇刊載內容。