大法官釋憲實務中的法官聲請釋憲－－兼論司法院釋字第572、590號解釋

Petitions for Constitutional Interpretation by Judges of Different Levels in the Practice: on the J.Y. Interpretation No. 572 and No. 590

「法官聲請釋憲」制度之基礎，主要源於「權力分立原則」及「法安定性原則」。在司法院釋字第371 號解釋出現以前，僅有最高法院或行政法院法官就其受理之案件，對所適用之法律或命令確信有牴觸憲法之疑義時，才得以裁定停止訴訟程序，聲請大法官解釋，以致於其他法院法官從事審判職務時，面對有違憲之法律，並無向大法官提起釋憲之權。惟自司法院釋字第371 號解釋賦予法官聲請釋憲權，其中司法院釋字第371、572、590 號解釋分別就法官提起釋憲闡明程序要件，而本文即就法官聲請釋憲之各項程序要件做評析。

The system of Petitions for Constitutional interpretation by judges of different levels was based on the constitutional principles of “separation of powers” and “stability of law”. Before Judicial Yuan Interpretation No. 371 was made, trying cases could be suspected only by the judges in the Supreme Court or Administrative Court when they found the cases were unconstitutional, while judges of different levels had no right to petition for constitutional interpretation of a case. However, in Judicial Yuan Interpretation No. 371, the Constitutional Court expounded that judges of different levels had the right to petition for the interpretation of constitutional statutes. And the procedural prerequisite for the petitions by judges of different levels was also clarified in Judicial Yuan Interpretation No. 371, 572, and 590, respectively. The article focused on the procedural prerequisite of the petitions for Constitutional interpretation by judges.