The Administrative Obligation of Disclosure and the Right against Self-incrimination
Date Issued
2007
Date
2007
Author(s)
Tsai, Chen-Yu
DOI
zh-TW
Abstract
The right against self-incrimination is a universal human right acknowledged in every modern country ruled by law. Its root can be traced back to the Bible, which has the nature of Natural Law. It is believed that the origin of the right against self-incrimination was to fight against the oath ex officio, and the oath ex officio was abolished because it infringed the natural human right (“freeborn right”). Owing to humans’ innate rationality, there is no modern country that does not recognize the right against self-incrimination as a basic human right.
Basic human rights should be unconditionally protected by the Constitution. Based on the supremacy of the Constitution, all measures taken by the government should not violate the Constitution. No matter how the government infringes people’s constitutional right, the infringement should be forbidden by the Constitution as long as it violates the core value of the constitutional right. Thus, since the right against self-incrimination is included in the Constitution, all kinds of infringement of the right against self-incrimination should also be forbidden.
In the field of administrative law, people are obligated to disclose information to fulfill the “regulatory purpose”. They are required to report, produce documents, and answer questions or they will be fined and imprisoned. Although “laws of regulatory purpose” are not directly related to the right against self-incrimination, this right must be sacrificed to the “regulatory purpose” in many cases such as the Hit and Run Statute. However, what is the “regulatory purpose” (or regulatory interest)? Is it possible to completely separate it from the criminal purpose? How do we deal with the conflict between them?
This thesis refers to the cases ruled by the United States Federal Supreme Court and argues that the five elements of the right against self-incrimination – No person, shall be compelled, in any criminal case, to be a witness, against himself – should be used to effectively define the obligation of disclosure in the field of administrative law, whether it has the regulatory purpose or not. In other words, people can invoke their right against self-incrimination to refuse to disclose incriminating information when they are asked to do so by the criminal law or administrative law.
Some may argue that the compulsory self-report system of the administrative law may totally fall apart if people are allowed to invoke the right against self-incrimination when they face the legal compulsion to disclose incriminating information. However, based on the element, “to be a witness”, mentioned above, the obligation to present documents will not be protected by the right against self-incrimination. Therefore, most conditions within the compulsory self-report scheme such as the disclosure obligation of finances in Security and Exchange Act or the property disclosure obligation of government officials are not affected by the right again self-incrimination. Only when the administrative law compels people to testify will the right against self-incrimination be involved. For example, people are requested to answer questions asked by the administrative agency or to notify the police of the automobile accident they involved, which only takes a small part.
In addition, this thesis argues that the administrative agency should grant immunity to remove the danger of self-incrimination and compel people to disclose information. The immunity suggested here is not “use and derivative use” immunity but “indirect immunity”, meaning the incriminating information obtained by the administrative agency must not be used by other prosecution-related agency. Under the circumstances, even if people have provided incriminating information for the administrative agency, the prosecution department can still prosecute people with the evidence obtained from legitimate sources wholly independent without proving that it is not derivative evidence. This way the danger of self-incrimination can be removed effectively and the right of investigation by the prosecution department will not be excessively violated.
Finally, since the “regulatory purpose” can be fulfilled and the damage to the interest of prosecuting criminals is almost invisible by granting indirect immunity, this thesis asserts that the right against self-incrimination can be invoked when people are under the legal compulsion of the administrative law to disclose information and there is no exception even if the government has a legitimate regulatory purpose. Therefore, in the circumstances that the administrative law compels people to serve as a witness, people should be allowed to invoke their right against self-incrimination to refuse to comply with the obligation until the government grants them indirect immunity.
Basic human rights should be unconditionally protected by the Constitution. Based on the supremacy of the Constitution, all measures taken by the government should not violate the Constitution. No matter how the government infringes people’s constitutional right, the infringement should be forbidden by the Constitution as long as it violates the core value of the constitutional right. Thus, since the right against self-incrimination is included in the Constitution, all kinds of infringement of the right against self-incrimination should also be forbidden.
In the field of administrative law, people are obligated to disclose information to fulfill the “regulatory purpose”. They are required to report, produce documents, and answer questions or they will be fined and imprisoned. Although “laws of regulatory purpose” are not directly related to the right against self-incrimination, this right must be sacrificed to the “regulatory purpose” in many cases such as the Hit and Run Statute. However, what is the “regulatory purpose” (or regulatory interest)? Is it possible to completely separate it from the criminal purpose? How do we deal with the conflict between them?
This thesis refers to the cases ruled by the United States Federal Supreme Court and argues that the five elements of the right against self-incrimination – No person, shall be compelled, in any criminal case, to be a witness, against himself – should be used to effectively define the obligation of disclosure in the field of administrative law, whether it has the regulatory purpose or not. In other words, people can invoke their right against self-incrimination to refuse to disclose incriminating information when they are asked to do so by the criminal law or administrative law.
Some may argue that the compulsory self-report system of the administrative law may totally fall apart if people are allowed to invoke the right against self-incrimination when they face the legal compulsion to disclose incriminating information. However, based on the element, “to be a witness”, mentioned above, the obligation to present documents will not be protected by the right against self-incrimination. Therefore, most conditions within the compulsory self-report scheme such as the disclosure obligation of finances in Security and Exchange Act or the property disclosure obligation of government officials are not affected by the right again self-incrimination. Only when the administrative law compels people to testify will the right against self-incrimination be involved. For example, people are requested to answer questions asked by the administrative agency or to notify the police of the automobile accident they involved, which only takes a small part.
In addition, this thesis argues that the administrative agency should grant immunity to remove the danger of self-incrimination and compel people to disclose information. The immunity suggested here is not “use and derivative use” immunity but “indirect immunity”, meaning the incriminating information obtained by the administrative agency must not be used by other prosecution-related agency. Under the circumstances, even if people have provided incriminating information for the administrative agency, the prosecution department can still prosecute people with the evidence obtained from legitimate sources wholly independent without proving that it is not derivative evidence. This way the danger of self-incrimination can be removed effectively and the right of investigation by the prosecution department will not be excessively violated.
Finally, since the “regulatory purpose” can be fulfilled and the damage to the interest of prosecuting criminals is almost invisible by granting indirect immunity, this thesis asserts that the right against self-incrimination can be invoked when people are under the legal compulsion of the administrative law to disclose information and there is no exception even if the government has a legitimate regulatory purpose. Therefore, in the circumstances that the administrative law compels people to serve as a witness, people should be allowed to invoke their right against self-incrimination to refuse to comply with the obligation until the government grants them indirect immunity.
Subjects
不自證己罪
緘默權
揭露義務
供述證據
管制目的理論
團體組織理論
行政約詢
行政調查
刑事豁免權
Privilege against Self-Incrimination
Right against Self-Incrimination
Right to Remain Silence
Obligation to Disclosure
Testimonial Evidence
Regulatory Purpose Doctrine
Collective Entity Doctrine
Administrative Investigation
Immunity.
SDGs
Type
thesis