A Study on American Executive Privilege – And Its Applications In Taiwan.

• Main Authors: Der-Lun Tsai, 蔡德倫
• Other Authors: Chien-Liang Lee
• Format: Others
• Language: zh-TW
• Published: 2008
• Online Access: http://ndltd.ncl.edu.tw/handle/87596761537699360552

碩士 === 國立臺灣大學 === 法律學研究所 === 96 === Abstract Though our constitution does not specifically provide for the presidential “Executive Privilege”. In this thesis, we tried to introduce “Executive Privilege” with American experience. Second charter is to decide that what the Executive Privilege means and how wide the range of it is. We discuss the difference between Executive Privilege and State-Secrets Privilege by listing many opinions of scholars, and finally suggest that State –Secrets Privilege shall be a part of Executive privilege. In third charter, starting from Washington President’s “St.Clair”, ending up with George W• Bush’s the firing of Attorneys. 200 more years’ practice, the Executive and the Congress follow an easy but unclear rule to run executive privilege. We conclude that most of the privilege claims are based on the separation of powers doctrine or “public good interests”. Sill we suggest that the Congress shall use their own “weapon”, which was conferred by Constitution. In the Fourth charter, we discuss many famous cases in Supreme Court, such as Arron Burr’s Treason(1807)、Totten Doctrine(1875)、The Reynolds(1953),and the Nixon’s Presidential privilege(1974). There are still other issues, like “The demand of due process of law in civil and criminal process.” ”Whether the claim of Presidential privilege is presumed to be true.” “Once State-Secrets Privilege is properly claimed, it won’t be interrupted by any further evidence demands or important public interests.” We found it necessary to establish a complete judicial review in court to police the executive privilege. In the fifth charter, we tried to build the concept of Executive privilege in Taiwan. Illustrating the municipal Executive privilege with two important J.Y.Interpretations: the no.627 and no.585. We concluded that according to the present Interpretations , the concept of Executive privilege in Taiwan would be wide and limited as a kind of constitutional power. And such analysis do accord with the ideal type of Executive privilege. In the sixth charter, we suggest policing the executive privilege with constitutional means. Congress should seek reasonable channels to negotiate and settle their differences, or establish applicable requirements and procedures by law. We disapprove that shaping Executive privilege by congress’s law making. But we agree that Congress shall tried to provide for the contempt of congress in order to prevent the misuse of privilege. The court shall establish a complete judicial review to police privilege and we found that present some of procedure laws lack basis of privilege and suggest the modification.. The Examination Yuan is indeed an independent agency of constitutionality. Because lacking of meaningful constitutional policing means , The Examination Yuan shall only follow the rule of J.Y.Interpretations no. 585 when meeting with Executive privilege from the Government. And Examination Yuan is indeed a Executive Branch, there are suggestions that Examination Yuan shall have the privilege as the government do. The Control Yuan lacks useful policing method ,too. Control Yuan shall seek reasonable channels to negotiate and settle their differences, or establish applicable requirements and procedures by law when meeting with Executive privilege from the Government. Keyword: 「Executive Privilege」、「State-Secrets Privilege」、「Separation of powers」、「Arron Burr」、「Totten」、「Reynolds」、「Presidential privilege」