廖義男

中文摘要

施行73年之久之「司法院大法官會議」，總共作成813號司法院解釋，對憲政民主法治之發展及人權維護，影響深遠並有相當之貢獻。2022年1日4日施行之「憲法訴訟法」，改制為「憲法法庭」，回歸司法權之行使，本質上應為審判之作用。因而將原來大法官釋憲之程序朝向「法庭化」及「訴訟化」修正，其審理所為之決定均以憲法法庭之名義作成裁判之形式加以宣示，展開「憲法法庭裁判」之時代。 本文先說明釋憲制度之產生及變革，梳理憲法訴訟法之特色與修法重點，再以憲法訴訟法施行後迄今（2022年9月30日）為止之9個月期間，所作成之15件憲法法庭判決為研究對象，除觀察新法對於憲法法庭作成裁判之效率及品質之作用及效果，並分析其在違憲審查之論理及判斷上，有無新價值、新觀念、新理論或新方法之提出，以及是否均有嚴謹之論證或邏輯推理及充足之理由，支持其判決主文之結論而足以令人信服。本文選擇其中有總額1/3大法官提出不同意見之4件判決，以及認為其判決之論理及判斷實有待商榷之另2件判決，予以分析檢討，深切期望維護人權最後一道防線之憲法法庭，其判決能更見周全，並為健全法治及保障人權，做出更大之貢獻。

The Logic of Constitutional Review after the Implementation of the Constitutional Court Procedure Act

Yih-Nan Liaw

abstract

For 73 years, the "Council of Grand Justices" has been in effect, resulting in 813 Interpretations that have had a significant impact on the development of constitutional democracy, the rule of law, and the protection of human rights. On January 4, 2022, the " Constitutional Court Procedure Act" came into effect, restructuring the system into the "Constitutional Court" and returning the exercise of judicial power back to its essential adjudicative role. Therefore, the original process of interpreting the constitution by the Grand Justices has been revised to become more "judicial" and "litigious" in nature. The decisions made during the trial are declared in the form of judgments under the name of the Constitutional Court, ushering in an era of "Constitutional Court Judgments." This article first explains the emergence and evolution of the constitutional interpretation system, outlines the characteristics of the Constitutional Court Procedure Act and its key amendments, and then uses the 15 Constitutional Court judgments made in the nine months since the implementation of the Act until September 30, 2022, as the research object. In addition to observing the effectiveness and quality of Constitutional Court judgments under the new act, the article analyzes whether there are any new values, concepts, theories, or methods proposed in the reasoning and judgment of the Constitutional Court in its review of constitutionality, as well as whether there is sufficient logical reasoning or evidence to support its judgment and conclusion. The article focuses on four judgments where one-third of the Grand Justices expressed dissenting opinions and two other judgments where the reasoning and judgment were subject to debate, with the hope of enhancing the role of the Constitutional Court as the last line of defense for human rights, and making a greater contribution to the sound development of the rule of law and the protection of human rights.