從「特別公課」論「雲林縣碳費徵收自治條例」之合憲性

On the Constitutionality of “The Self-Governmental Regulation of Carbon Tax in the Yun-lin County” By “Earmarked Tax”

我國已有花蓮縣、雲林縣、高雄市三個地方自治團體，紛紛各自在其議會通過相關課徵碳稅、碳費或氣候變遷調適基金等之條例，並向中央備查或核定。惟中央均以各種理由，不予備查或不予核定。在地方自治的精神下，地方自治團體課徵碳稅，有無自己的地方自治權限？碳稅究竟屬於公課體系下的何種性質？針對上述重大實質問題，雲林縣政府聲請司法院大法官解釋，可惜的是，民國101年11月21日司法院大法官議決不受理。吾人質疑司法院大法官議決不受理之正當性，深入論述己見。本文以雲林縣徵收「碳稅」為研究核心，從特別公課之性質作為出發，論證並確信地方自治團體有課徵碳費之權限以及使用碳費作為環境管理手段之合憲性，最後提出結論與建議。

Taiwan had three local self-governmental bodies, such as the Hualien County、the Yunlin County and the Kaohsiung City which had have adopted the relevant laws about the carbon tax, carbon fee or adaptational fund of climate change respectively in their Parliaments and had submitted each of them to the Central Government for references or approvals. But the Central Government was by all kinds of reasons not for reference or for approval of these relevant laws from the local self-governmental bodies. In the spirit of the local autonomy, whether local governments have the competence to impose a carbon tax on the people or not ? whether the carbon tax is the nature of a earmarked tax or not ? Based on the above major substantive issues, the Yunlin County Government had claimed their petition for an constitutional interpretation of Judicial Yuan in Taiwan. Unfortunately, the Resolution No.1396 of Judicial Yuan at November 21. 2012 would not consider this petition. I will question the legitimacy of the Resolution No.1396 and argue for my own views. Therefore, this article will from the nature of a earmarked tax explore the issues about the 'carbon tax' of the Yunlin County as the core of the study and demonstrate and will be convinced that local governments have the competences to impose a carbon fee on the people and use the carbon fee as a constitutional means of environmental regulation. Finally, I make some conclusions and recommendations for the carbon fee.