| Summary: | 博士 === 國立臺北大學 === 法學系 === 93 === In order to solve the Constitutional criticism on balancing the necessity of eavesdropping and personal privacy concern, the Law of Communications Protection and Supervision implemented since July of 1999 has incorporated into the principle of “Vorbehalt des Gesetzes” to authorize the government intercepting individual’s freedom of private communications. Electronic eavesdropping, however, which is different from the traditional way, recently raised many issues of investigative application under the existing legal mechanism.
This dissertation will start from the Constitutional approach to explain the criminal constitutionality of the eavesdropping as well as basic rights consideration on administrative law and the law criminal procedure. In addition, the principle of proportionality (Grundsatz der Verhältnissmäβigkeit) will be formed as the major concern as well as the principle of necessity and the prohibition of excessiveness to discuss proper standard of review on eavesdropping in courts’ application. Further, to broaden and deeper into the focus, this dissertation will use comparative method to introduce the legal theories and practices in both German and America as well as legislative, interpretative and pragmatic methods for review on each angle.
Chapter One will first point out the issue and concern on this topic. Chapter Two and Chapter Three will discuss the permissible eavesdropping from legislation perspective. Chapter Four will focus on interpretative theory on the limits of eavesdropping. Chapter Five and Chapter Six will use the above theories to examine the issues raised by eavesdropping in a more pragmatic way, including basic rights protection and criminal constitutionality. Finally, Chapter Seven will outline appropriate standpoints and hope to propose better suggestions on law revision and legal practices in the near future.
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