法官聲請解釋憲法之研析

A Study on the Judge's Petition to Interpret the Unconstitutionality of the Statute

法官聲請解釋憲法乃重要的釋憲制度，既可消除法官對遵守憲法與依據確信違憲法律裁判間可能發生之取捨困難；而大法官就經聲請解釋之法律作成有拘束力之憲法上判斷後，又可維護法一致性及安定性；並能及時保障當事人權利，而撙節司法資源。然大法官實務上就「合理確信法律為違憲」之聲請要件的判斷準據，尚非明晰，實宜建構明確妥適的判斷準據；並宜增強法官應依實質正當之法律為裁判之體認，積極聲請釋憲，俾此制度能發揮釋憲弘法的功能。

While handling a case, if the judge suspects with reasonable assurance that the applicable statute may contravene the Constitution, the judge may make it a prerequisite issue for deciding the pending case. The judge shall then suspend the procedure of the case, provide concrete reasoning of the judges objective belief that the statute violates the Constitution, and petition the Constitutional Court for a constitutional interpretation. This form of interpretation may eliminate the judges dilemma of upholding the Constitution while applying the controversial statute, and conserve judicial resources. Therefore, the procedure of the judges petition to interpret the unconstitutionality of the statute is of critical importance in the practice of the constitutional interpretation. This article discusses the evolution, requirements, procedure and practice of the judges petition to interpret the unconstitutionality of the statute in Taiwan. It also suggests that the Constitutional Court clarify its criteria for the providing of concrete reasoning of the judges objective belief that the statute violates the Constitution, and encourages the judge to submit a petition of this kind when the requirements are met.