| Summary: | 碩士 === 國立臺灣大學 === 法律學研究所 === 101 === The border control of a nation is the key of the sovereignty showing. However, since everyone is protected by Constitution rather than only their own people are, when a country deports foreigners or prohibits them from entering, the relevent person should have rights to ask for the court to protect his fundamental right. This thesis is concerned that the deportee who has family in the country should have the chance to claim “the right of family life” against those deporting treatments which do not comply with the principle of proportionality.
This thesis chooses the European Convention on Human Rights as a comparison research object. First of all, the thesis confirms "foreigner" can also own the fundamental rights, and then researchs for which rights, and to what extents. Second, it researchs for the protection of family life in Convention. It observes how the Convention views "Family Life", and what meaning it is. This thesis also introduces the types of family life which European Court of Human Rights has decleared, such as cohabitation, homosexual couples, transgender person couples, relationship between illegitimate children and his father-in-blood, and even other more distant relatives relationship.
Next, the thesis concerns the condition that "people''s right of family life" and "the national right to refuse foreigners entering or to deport them" mutually collide in the judgments of European Court of Human Rights, and finds how to operate "the principle of proportionality" specifically. The thesis hopes the principle of proportionality is not only a arbitrary sense of the judge, but a clear judgment rule through the ways of the accumulating of verdicts, treaties, and regulations. The judgment method is to find the elements in the judgments of European Court of Human Rights that are conducive to justify the expulsion treatments (such as the seriousness of their crimes) and the factors helping to protect family life (such as the family life has established very long in the country). I name the former factors “social links”, and the latter factors “social damages.” In fact, the operation of the principle of proportionality is to measure of social links and social damages. What’s more, the thesis analysizes different reasons of deportation, including crime and national security, and generalizes some principles that the judgments of European Court of Human Rights have used. These principles can be provided to judges to refer to when judging a relevent case.
In the end, after understanding the protection levels of the European Convention on Human Rights, the thesis goes back to our domestic laws to carry out comparative study and tuning. It analyzes the articles of Constutition, the interpretations of the Constitution Courts, and the judgments of the courts. At last, the thesis points out the problems of the judgments, the inadequacy of the legal system, and then provides some suggests of amending direction of the law.
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