釋憲趨勢與半總統制的制度韌性

Constitutional Jurisprudence and Institutional Resilience of Taiwanese Semi-Presidentialism

半總統制表面上是一個具有彈性的制度，因為它可以在總統制與議會內閣制間擺盪換軌，故半總統制的制度韌性似乎應該比其他兩制都強。但也正是因其制度彈性所留下的解釋空間，更容易引發爭議。違憲審查制度因為可以化解解釋爭議，所以也就能強化制度韌性。我國違憲審查制度已經運作近70年，但自1997年我國進入半總統制後，其逐漸失去化解爭議，強化制度韌性的功能。本文嘗試分析其原因，並提出改革建議。

On the surface, semi-presidentialism creates a more flexible regime as it may switch between presidentialism and parliamentarism whenever it deems necessary. It seems that the institutional resilience of semi-presidentialial system is better than that of other political layouts. However, institutional flexibility of semi-presidentialism could also create rooms for controversy. Fortunately, constitutional judicial review, in general, could strengthen the resilience of semi-presidentialism by performing its function of textual interpretation to solve political conflicts. Nonetheless, after being in place for nearly seventy years and particularly after the constitutional reform in 1997, the constitutional judicial review in the ROC has lost bit by bit its function of resolving political conflicts. The aim of this article is to analyze the reasons of its decline and to put forward some proposals for future reform.