論我國最高審判機關之規範制定權

Abstract

就我國最高審判機關是否得自行依其職權制定成文規範，司法院釋字第530號解釋明採肯定說，肯認最高司法審判機關「就審理事項[…]有發布規則之權」。基此，本文以「我國最高審判機關之規範制定權」為題，針對系爭制度之誕生淵源、運作模式與可能疑義進行研究。 根據本文之研究，我國最高審判機關制定規範權法制之建構，高度仰賴由司法院大法官作成之各號憲法解釋。現制架構中，在不違反上位法令之前提下，最高法院、最高行政法院、憲法法庭、職務法庭與懲戒法庭第二審同作為最高審判機關，有權針對其所受理之案件制定各項程序規範。惟本文亦指出我國現行制度存在不少隱憂，蓋我國最高審判機關規範制定權之法源不明，各號憲法解釋在體系、用語上亦時有扞格之處，致系爭制度諸多細節及其權力行使之效果至今成謎，不只難以達到保障「審判獨立」與「人民司法受益權」的制度初衷，甚至可能違反權力分立原則。職此，本文之研究結果認為系爭制度誠有迫切改革之必要。 就我國現行法制可能之改革方向，解釋論上，若將成文司法規範解釋為最高審判機關依其職權所制定之職權命令，並輔以中央法規標準法第7條針對命令必須送置國會之要求，或可建立我國司法規範受立法或外界審查之可能性，惟職權命令之於我國行政規則體系之相容性既始終存疑，此種解釋方法未必有其實益。反就立法論言，我國若能仿照美國，通過明文立法，詳細並明確地規定司法規範的制定機關、制定程序、規範效力與救濟途徑，當可有效改善目前我國現行體制各種紛繁複雜的問題，使我國最高審判機關的規範制定權法制得以真正發揮其保障自由民主憲政秩序的初衷。

As to whether Taiwan's highest judicial institution may, by virtue of its authority, formulate written rules, Judicial Yuan Interpretation No.530 explicitly affirms this, recognizing that the highest judicial body “has the authority to issue rules regarding matters of adjudication.” On this basis, this article, titled On the Rule-Making Authority of Taiwan's Highest Judicial Institution, conducts a study on the origin, operational model, and potential issues of the disputed system. According to the research presented in this paper, the construction of the legal framework concerning the rule-making authority of Taiwan’s highest judicial institution relies heavily on the constitutional interpretations rendered by the Justices of the Judicial Yuan. Under the current system, so long as higher-ranking legal provisions are not violated, the Supreme Court, the Supreme Administrative Court, the Constitutional Court, the second instance of the Civil Service Disciplinary Commission, and the Disciplinary Court—all acting as highest judicial institutions—possess the authority to formulate various procedural regulations for the cases they handle. However, this article also points out that the current system in Taiwan gives rise to numerous concerns. The legal basis for the rule-making authority of Taiwan’s highest judicial institutions remains unclear, and inconsistencies in structure and terminology among various constitutional interpretations frequently arise. As a result, many details of the disputed system and the effects of such authority remain ambiguous. This not only hinders the system’s intended purpose of safeguarding “judicial independence” and “the people’s right to benefit from the judiciary,” but may even contravene the principle of separation of powers. Accordingly, the findings of this paper conclude that the system in question is in urgent need of reform. As for possible reform directions under the current legal framework, from the interpretive perspective, if written judicial rules are construed as orders issued by the highest judicial institution by virtue of its authority, and are further subject to the requirement under Article 7 of the Central Regulation Standard Act—namely, that such orders be submitted to the legislature—then it may be possible to establish a mechanism through which judicial regulations are subject to legislative or external oversight. However, given the persistent doubts regarding the compatibility of such “authority-based orders” with Taiwan’s administrative regulatory system, this interpretive approach may not be of practical value. Conversely, from a legislative perspective, if Taiwan were to follow the example of the United States and enact explicit legislation clearly defining the rule-making body, the procedures for formulating judicial rules, their legal effect, and avenues for remedy, it would significantly improve the current complex and fragmented system. Such a framework would enable the rule-making authority of Taiwan’s highest judicial institution to truly fulfill its foundational role in safeguarding the constitutional order of freedom and democracy.