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由于科技进步与人权理论的发展,不确定法律概念也在随之发生变化,而行政机关基于不确定法律概念作出的更详细的裁量基准却并没有变。在艾滋病刚被发现时“禁止男同性恋者献血可有效抑制传播”的观念在今日已不再正确,而依此作出的裁量基准也出现侵犯男同性恋者隐私权、加深歧视及违背法律授权目的之情形。本文尝试从人权视野下台湾地区禁止男同性恋者献血规定之分析行政裁量基准的角度进行分析,并指出同性恋者权益保护在法律层面的缺失。
Due to the progress of science and technology and the development of human rights theory, the concept of the law of uncertainty is also changing. However, the more detailed discretional criteria made by the executive authorities based on the concept of the law of uncertainty have not changed. The concept of “prohibiting gay men from donating blood to effectively suppress transmission” has ceased to be true today just when AIDS was found, and the basis for such a measure has also been to violate the privacy rights of gay men, deepen discrimination and violate the legal authority Purpose of the situation. This article attempts to analyze from the angle of analyzing the administrative discretional benchmarks of prohibiting the blood donation of homosexuals in Taiwan in the perspective of human rights and points out the lack of legal protection of the rights and interests of homosexuals.