| Summary: | 隨著全球化影響，國際人口移動日增，以及兩岸開放交流，衍生國人與外籍或大陸人民通婚現象，且近十年來通婚數量急遽增加，對我國人口結構及社會造成相當程度之影響。我國過去並未有如此多外籍或大陸人士來台，近幾年方有較具規模移民法制之建置，目前相關移民法規約有「入出國及移民法」、「國籍法」、「台灣地區與大陸地區人民關係條例」等，這些法規對於外籍配偶與大陸配偶移入分別設有不同規定，外界遂有認形成差別待遇之情形。
本論文首先檢視我國憲法對於外國人或是移民之保障範圍，釐清婚姻移民是否得享有我國憲法保障之權利，探討法制上何以將外國人與大陸人民區分，並比較兩者差別待遇情形，再以平等權觀點加以檢視其差別待遇是否合理。我國法制對於外籍配偶與大陸配偶之法律地位及差別待遇，由於對於大陸配偶安全顧慮較高且兩岸婚姻成長迅速卻又較不穩定，以致於其實際待遇尤其是工作權與居留權略遜於外籍配偶。本文以美國法模式之平等權觀點審查，外籍配偶與大陸配偶有其法律地位及實際情形之不同，並非不能差別待遇，重要的是差別待遇是否合理的問題，本文經探討認為：居留權部分，涉及家庭團聚權，採「中度審查標準」，認仍屬合憲，惟有關工作權部分，大陸配偶來台制度目前偏重於對兩岸婚姻弱勢經濟家庭之保障，相較於外籍配偶居留即取得完整工作權，此一差別待遇則難符合平等權。另有關參政權及服公職權之規定，由於取得公民身分制度及程序之不同，就忠誠衝突及安全考量，為維護我國生存發展及民主憲政秩序，兩岸條例第21條之規定尚屬合憲，惟有關對於大陸人民設籍滿10年始得擔任公職，本文認為尚得考量公職對國家安全與利益之影響及所需民主素養程度，分類後區分限制擔任公職種類。
外籍配偶與大陸配偶來台制度之差別待遇問題，本文認為須從實際來台狀況予以檢驗及解決，重要的是基本權益的實質保障，另為解決此一問題，應從改善兩岸關係著手，如能減緩或解決兩岸間政治、軍事對立及衝突，能有良好正常的互動與發展，同時有效改善虛偽結婚或異常、非法情事，當能更提昇大陸人民或是大陸配偶權益及待遇。此外，我國應參照國際人權保障趨勢，擬訂符合我國需要之移民政策，朝保障外來移民之權益繼續努力。
=== As globalization goes on, the movement of international population is increasing. For Taiwan, cross-strait communication speeds up this trend. International marriage, including that with the foreigners and PRC citizens, grows up drastically in the number over the past ten years. There were not so many immigrants from foreign countries or from Mainland China before in this country. In response thereto, Taiwan government has set up legal systems and particular rules to regulate immigration lately, for example, “Immigration Law”, “Nationality Law”, “Act Governing Relations between Peoples of the Taiwan Area and the Mainland Area”, and so on. These laws include different articles to regulate foreign spouses and Mainland China spouses respectively. Some people therefore get the impression that there is involved discrimination in legal systems.
One aspect of this study is firstly devoted to an investigation of the protection as imparted by our Constitution in order to clarify the issue whether a foreign spouse is entitled to rights under the Constitution. Another aspect is to discuss the difference in legal status between a foreigner and people from Mainland China. Then, the legitimacy of such a differentiation is examined from the angle of equity. Actually, the rationale under such a differentiation comes from the cross-strait relations. Relatively, the regulations are stricter for the mainland spouses than for the foreign spouses, in particular in terms of the right to work and residence. As for political right and the right to become civil servants, the problem is more complicated. Since the foreigners and mainland people are regulated differently in respect of the procedures and requirements for getting the citizenship, in consideration of the loyalty conflict and security and in order to ensure the existence and maintain the constitutional democracy of our country, the 10-year minimum requirement for mainland people to become civil servants upon getting the citizenship as prescribed in Article 21 of “Act Governing Relations between Peoples of the Taiwan Area and the Mainland Area” is supposed to be in conformity with the constitution. On the other hand, the author of this dissertation opines that upon specifying the restriction on the positions open to the mainland people, the legal system should take into account the impact of their becoming civil servants upon the national security and their accommodation to democracy as required.
The author investigates the differentiation in law between foreign and mainland spouses from the angle of American law and the theory of equal protection. Currently, the policy on the mainland spouses’ right to work is focused on the maintenance of low-income families. It might amount to a kind of discrimination that does not quite comply with the equal protection if compared with the phase of foreigners. However, due to the difference in citizenship system between the foreign and mainland spouses, the legal status of these two might not be identical. The foreign spouses who intend to be naturalized in Taiwan must accept the loyalty examination. But for mainland people, the steps to get Taiwanese citizenship lack the loyalty examination procedure. The mainland people who get Taiwanese citizenship are not required to abandon the nationality of mainland China. The mainland people come from communist system; they need a period time to get accommodated to democracy. Therefore, by virtue of loyalty conflict and national security consideration, it is constitutional that the law may prescribe some restriction in this regard. Nonetheless, there remains room for review of the 10-year minimum requirement. It is incumbent upon the legal system to regulate the civil positions to be open in accordance with the impact upon the national security and the accommodation to democracy as required.
On the basis of this study, it is suggested that the differentiation between foreign and mainland spouses, having its institutional sector, should be examined and solved in consideration of national circumstances and practical phase. Of particular importance is how to promote the substantial protection of basic human right. Besides, another critical factor is to improve the cross-strait relationship. The tasks such as: to ease and avoid cross-strait political and military confrontation or conflicts, to foster normal and friendly bilateral relations and interaction, etc., all play a critical role. Meanwhile, an effective solution to the problem of fake marriage and other crimes or illegal events will help enhance the interest and status of mainland people furthermore. Also, our country should keep following the trend of international human right protection so as to work toward realistic immigration policy and a satisfactory legal system without compromising the right protection of immigrants.
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