憲法訴訟法作為程序法之研究

Abstract

憲法訴訟法於2019年1月4日修正公布，並自2022年1月4日起正式施行，取代司法院大法官審理案件法（以下簡稱為大審法）成為大法官釋憲程序規範，開創新紀元，為釋憲史上最重要之變革。 本文乃從程序法面向出發探討憲法訴訟法，又憲法訴訟法內容，係以大審法、大審法修正檢修及引進新制度組成，本文論述主軸為：大審法主要規範、大審法修正草案內容、憲法訴訟法主要規範及重要特色，並以研究發現及實務運作與觀察為結論。 大法官釋憲之權限，為憲法本文創設，且僅有簡要之規範，過去大法官釋憲組織及程序，係由大審法為具體規範，本文從大審法之歷史沿革、大法官行使職權組織及形式、聲請案件類型及要件、審理程序及大法官解釋效力面向為舊制大法官釋憲制度之梳理歸納。並由大審法施行後，司法院陸續提出之大審法修正草案，窺見大法官釋憲程序之變化，逐漸朝向正名為憲法訴訟法、司法化方向變革。 憲法訴訟法規範架構，本文著重在不同於舊制之裁判憲法審查制度、訴訟類型調整及要件、憲法法庭審理流程、裁判效力等面向，深入分析新制大法官釋憲制度之規範。此外，於憲法訴訟法重要特色，則探討憲法訴訟法之重要革新制度，法庭之友、暫時處分、主筆大法官顯名制、新舊制過渡條款，以及司法院為憲法訴訟頒布11項授權子法為內容，並就司法院於2022年8月隨著新制施行，因應實務運作而提出部分條文修正草案內容為分析。 最後，本文以研究發現及實務運作與觀察為總結，歸納憲法訴訟法修法之內涵，並提出未來有待持續觀察與期待之方向。

The Constitutional Court Procedure Act (“New Act”) was amended on January 4, 2019, and officially came into force on January 4, 2022. It replaced the Constitutional Interpretation Procedure Act (“Old Act”) and becomes the procedures for the Justices of the Constitutional Court (“Justices”) to deliver the interpretations of the Constitution. The foregoing ushers in a new era of constitutional interpretation and, by far, is recognized as the most important reform in constitutional interpretation history. The main structure of New Act is made based on Old Act and the revisions made to it. Furthermore, new systems have also been concurrently introduced as part of the structure of New Act. This paper discusses and explores New Act from a procedural perspective. The followings are the major themes addressed in this paper: (i) the major provisions of Old Act, (ii) the draft amendment of Old Act, and (iii) major provisions and important features of New Act. Based on the research, the author stated also in this paper the views and findings on the topic and the observations of current practice. The authority of Justices to interpret the Constitution is vested in the Constitution. However, as only a few provisions regarding such are provided in the Constitution, in the past, the organization and the procedures to be followed by the Justices to interpret the Constitution in the past are prescribed for in the Old Act. This paper summarizes the old mechanism based on the history of Old Act, the organization and form regarding Justices’ exercising their authority, types and essentials of petitions, judiciary proceeding and effect of the Constitutional Interpretation. Judicial Yuan further proposed amendments to Old Act after the implementation of Old Act. The trend to have (i) the name of regulations governing the institution of the Constitutional Interpretation by the Justices to be called the same name as New Act, and (ii) the judicialization reformed seems can be perceived from those amendments. The structure of New Act emphasizes on a procedure of “constitutional complaint concerning a judgment” for Justices, new types and elements for constitutional litigations, the proceedings for handling petitions to the Constitutional Court, and the effect of decisions. The important features regarding New Act are as the follows: amicus curiae, preliminary injunction, provisional disposition, the system of naming the chief Justice, transitional clause, and the promulgation of 11 delegated regulations of New Act by the Judicial Yuan. Based on the practice of the implementation of New Act, Judicial Yuan subsequently proposed amendments to New Act on August, 2022. Lastly, the author (i) concludes in this paper research outcome and the observations on practice regarding New Act (ii) summarize in this paper the practical aspects of the amendments made to of New Act, and (iii) put forward in this paper the constitutional litigation system worthy of continuous observation and expectation.