黨產條例合憲性爭議再探：以釋字第793號為中心

Reevaluation of the Dispute over the Constitutionality of the Act Governing the Settlement of Ill-gotten Properties by Political Parties and Their Affiliate Organizations: Centering on Interpretation No. 793

隨著釋字第793號解釋之作成，爭議多時之「政黨及其附隨組織不當取得財產處理條例」，至少部分規定之合憲性已經大法官肯認。即便如此，我國憲法學理，乃至於相關政黨及附隨組織對該等部分規定及該號解釋之討論，甚或是批判仍方興未艾。本文即以該等部分規定及本號解釋為探究之對象，一方面依序對於所涉及之國家是否有以調查及處理不當取得財產之方式推行並落實轉型正義之憲法義務、不當取得之財產是否亦屬憲法財產權之保障範圍，以及該條例是否違反憲法保留、個案立法禁止，乃至於法律不溯及既往等原則之問題，嘗試由憲法學理及德國法之觀點進行分析，另一方面並將對本號解釋之相關論證內容進行評析。期望藉此而有助於深化與轉型正義相關之憲法對話。

As Interpretation No. 793 was released, the dispute over whether the Act Governing the Settlement of Ill-gotten Properties by Political Parties and Their Affiliate Organizations (hereinafter referring to as“the Act”) is in line with the constitution may have been temporarily appeased. Interpretation No. 793 has confirmed that Article 2, Article 4 Paragraphs 1 and 2, Article 8 Paragraph 5, and Article 14 of the Act are in line with the constitution. However, Verfassungsvorbehalt and Verbot des Einzelfallgesetzes became the center of dispute after the Act was regulated. Although Interpretation No. 793 covers them, perhaps restricted by the form of explanation, it cannot adequately address these issues like an academic research. Therefore, further discussion is necessary. This paper devoted a major part of its space to these issues. In addition, because the Act also involves the investigation and handling of the ill-gotten party assets of political parties and their affiliated organizations from the past to realize transitional justice, it is necessary to first analyze how it should be assessed according to the constitution. Specifically, whether a country has the constitutional obligation to use this method to promote and realize transitional justice as well as whether those ill-gotten party assets are within the protection of property rights under the constitution. Moreover, because the Act involves the investigation and handling of ill-gotten party assets of political parties and their affiliated organizations during the authoritarian period when there was no clear distinction between party and state, it may violate the principle of prohibition against retroactive law. Hence, it is necessary to probe into this issue, and the discussion was included in this paper. Also, this paper analyzed and evaluated relevant argument content of Interpretation No. 793. It is hope that this study is conducive to the conversation between the constitution and transitional justice.