| Summary: | 碩士 === 國立中山大學 === 中山學術研究所 === 93 === The concept of Due Process of Law originates from the concept of rule of law in 18century in the Anglo-American legal tradition. Due process of law ensures the government will respect all of a person''s legal rights instead of just some or most of those legal rights, when the government deprives a person of life, liberty, or property. In the USA, the Fifth Amendment contains a guarantee of basic due process applicable only to actions of the federal government: "No person shall be... deprived of life, liberty, or property, without due process of law...." The Fourteenth Amendment contains the same phrase, but expressly applied to the States. The Due Process Clause has been interpreted by the Supreme Court as placing limitations on laws and legal proceedings in order to guarantee fundamental fairness, justice, and liberty.
In Taiwan, most scholars would agree that the 8th provision of Constitution embodies the Due Process of Law. After the Grand Judge Committee formally quoted the Due Process of Law in the No. 384 Interpretation, there are some Interpretation imposed restrictions on legal procedures based on Due Process of Law to highlight the fulfillment of Rule of Law as a safeguard of the Fundamental Right. In 2001, the No. 535 Interpretation clearly notifies that the regulations of police temporary search , a stop-and-frisk law enforcement procedure, are not conformed to the constitutional principle of “Gesetzesvorbehalt,” and sets out the enactment of the Police Authority Performing Act （PAPA）in 2004.
However, there is some latent verbal ambiguity in the law and regulations concerning police temporary search. This thesis thus aims at the clarifying the legitimacy of the discretion in the stop-and-frisk law enforcement procedure, distinguishing the contents of police temporary search as the administrative examine from those as criminal investigation, and discussing the evidential effect of items from illegal police temporary search through the comparative study of German, American, and Japanese law and regulations.
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