特別公課的憲法框架──以德國聯邦憲法法院裁判及其學理檢討為借鏡

Constitutional Framework for the Special Common Levies: A Reference to the Decisions of the German Fedreal Constitutioal Court and Its Academic Analysis

相較於我國司法院大法官對於特別公課制度抱持樂觀以對的態度，我國相關學理亦多直接援引德國聯邦憲法法院所開展的特別公課要件，以作為評價我國特別公課實務的基準。但若從此制度源頭的德國憲法實務與學理觀之，特別公課此一財政手段毋寧應格外嚴肅以對；對於德國聯邦憲法法院所開展的特別公課要件與實務發展，學理上亦不乏質疑。對此，本文擬針對德國法上特別公課的發展予以檢視，並區分狹義與廣義之特別公課，分別討論其憲法要求，以期建立判斷特別公課的合憲性要求。

The Constitutional Court holds a positive attitude toward the special common levies. The relevant theories also refers to the require-ments of special common levies established by the German Federal Constitutional Court as the basis to review the special common levies in Taiwan. However, if we analyze the special common levies based on the practice and theories of German constitutional law, which is the source of this concept, we would find that one should treat this fiscal policy more seriously. There were several criticisms on the requirements and practices of special common levies established by the German Federal Constitutional Court. This article aims to review the development of the theories on special common levies in Germany, distinguish between the special common levies in the narrow sense and that in the broad sense, and discuss the different constitutional requirements on these different kinds of special common levies in order to establish the criteria to determine the constitutionality of special common levies.