On the Limit of Police Discretion:the Case of Social Order Maintenance Act Article 85

Following by the social movement, professors and students who participated the 318 Anti- ECFA protests were treated under the police violence and accused of obstruction for official duties. However, police officer has quite a huge power to decide whether this behavior is an offense or not base on Social Order Maintenance Act Article 85 and Criminal Law Article 135 which means the descriptive boundary is unclear and give the police too much power. The development of theory and practice of Administrative Discretion in Taiwan is deeply influenced by Administrative Law in Germany. The impact of “Theory of Qualitative Difference” leads to the problem of boundary of legality and law controlling when police take in charge of administrative discretion. Police officer in Taiwan has both identites of judicial and administrative officers therefore has rights from both sides. As a result, the discretion is mainly made from the personal judgements and highly influenced by the personal interest. This dissertation aims to reconstruct the idea of administrative discretion based on its components and effects to give it and reflexive overviews of this problem. Even though the police officer is not the final court for the final judgement, the freedom of speech and human right easily offense by the police on the front line. The case of throwing shoes, anti-evidence collection is the example for the misuse power. This article aims to use the case to review the Social Order Maintainance Act, and claims for police should follow the proper administration procedure rather than only use the subjective judgment in order to protect the human rights.