权力与权利之间:台湾地区烟害防制法制经验与启示

The Relationship between Power and Right:The Experience and Enlightenment of Taiwan Tobacco Protection and Control Law

台湾地区烟害防制法制以"烟害防制法"这一专门性立法为核心,辅之以"行政院"配套实施的行政规则及"烟酒税法"等单行立法作为重要补充。烟害防制的手段包括健康福利捐的征收、烟品包装与标示的强制要求、烟品贩卖与广告的限制、特定群类禁止吸烟及特定区域设定禁烟等。这些手段涉及公权力干预社会习惯,引发了关于权力与权利平衡的论争。台湾地区"大法官解释"的基本脉络以"法律保留"作为公权力干预公民基本权利的正当性基础,以"比例原则"作为划定公权力介入公民基本权利疆域的工具,很好地解决了权力与权利之间的平衡问题。这一经验为大陆地区控烟立法过程中解决类似的问题提供了启发。

Taiwan tobacco protection and control law is enforced with the special legislation of ＂Tobacco Control Act＂ as its core and supplemented with the supporting administrative rules stipulated by the ＂Executive Yuan＂ and the ＂tobacco tax＂ by the ＂Alcohol and Tobacco Tax Act＂ as the important contents and supplements. The tobacco control measures include the collection of health benefits, the mandatory requirements of cigarette packaging and labeling, the restrictions of cigarette trafficking and advertising as well as the prohibition on smoking to specific groups and in designated areas. However, as these measures involve the intervention of public power in social customs it triggers the debate about the balance of power and right. On the other hand, the basic context of the ＂grand justice interpretation＂ in Taiwan is the legitimate foundation on which the ＂legal reservation＂ is taken as public power to intervene the basic rights of citizens, and the instrument by which the ＂principle of proportionality＂ is designated as public power to intervene the territory of the citizen basic rights. As a result, it proves to be a good solution to the problem of balance between power and right. Therefore, the writer believes that the experience can serves as the enlightenment to the mainland in resolving similar problems in the process of controlling tobacco legislation.