歐洲共同體法院司法積極主義之研究

A Study on Judicial Activism of the Court of Justice of the European Communities

系所名稱：歐洲研究所 學位別：碩士 畢業學年：97年 指導教授：王服清 歐洲整合涉及到各會員國間之利益糾葛，雖然彼此間會就其整體利益做出權衡而妥協讓步。但這種折衝的過程，在某種程度將會減損整合的力道。有鑑於此，歐洲共同體法院藉由初步裁決程序，以一種司法積極主義的司法哲學進行司法造法。藉由一種代位立法的行使，使歐洲整合能夠持續進行。透過這種司法造法，歐體法院創設了直接效力原則以及優先適用原則，使歐洲共同體法更趨近為聯邦法。另又創設國家責任原則，使會員國人民在會員國未將指令轉換立法而致其權益受損時，得以請求司法救濟。如此，歐體法院藉由這種司法造法的積極主義使歐洲整合邁向聯邦化的過程。但也正因如此，它受到不少猛烈的批評。即便說，學者皆肯定歐體法院在歐洲聯盟基本人權保障的努力以及關於歐洲共同體與會員國間彼此權限劃分的貢獻，還有解決歐洲共同體法與會員國內國法衝突的問題與強化四大自由流通。何以歐體法院藉由代位立法，促進歐洲整合會受到批評？主要的爭論在於，歐體法院是否有此權限得以在共同體法規範漏洞時，逕行立法；其次，歐體法院因僅具間接正當性，其司法造法有何正當性基礎；次之，歐體法院藉由客觀目的與功能性解釋，是否已超越法學解釋方法之界線；而這種代位立法，也產生司法僭越之疑，有破壞共同體機關制衡關係之虞；加以，會員國內國法院常對其判決持保留之態度；最後，歐體法院常以一種抽象一般法原則概括解釋，似乎讓人無法信服其說理依據。本文之研究目的，即是對歐體法院司法積極主義所創設之原則、貢獻與界限還有學說爭議加以討論。

Here I would like to discuss about the involvement of the integration of Europe Member States between the interests of disputes. Although the mutual thing will to balance the interests of the overall compromise and concession. However, this process of negotiations, in some degree of impairment would be an integrated force. As the insight of this, the preliminary ruling by the European court procedures is a judicial activism of the judicial philosophy of judicial law-making. Europe can be integrated as an on-going force with a bit of legislation on behalf of the exercise. In this judicial law-making, the EU Court creates the principle of priority that can directly affect the application of the principle of European Community law than the recent federal law. Another principle of State responsibility is created to ensure that the people of Member States to Member States are not to have conversion of its legislative interests of the people. They are not to request judicial relief. Nevertheless, the EU Court of Justice still favours this law-making and active integration into the European Federation of the process. However, for this reason, a lot of the points have been severely criticized. Even though it has been said that the scholars are in the EU Court of the European Union's efforts to protect the basic human rights. They are also to look after the European Community and the Member States, of their contribution to the division of powers. Scholars address members of the European Community law and national laws that are conflicting with the strengthening of the four free Circulations. Why the EU by the court on behalf of the legislators to promote the integration of Europe will be subject to criticism? The main disagreement is whether The Court of Justice of the European Communities of the authority to regulate the loopholes in Community law, the legislative track line; Second, the EU court only as a result of an indirect legitimacy is the legitimacy of the judicial law-making basis; second, and The Court of Justice of the European Communities -by objective and purpose of the functional interpretation goes beyond than what it is.The boundaries of interpretation of law and this generation of legislators have also suspected of the judicial authority. There is damage to the community relations body, which the checks and the balances are in danger. To become members of the domestic courts, one has often needed to withhold reservations on the attitude of the decision. Finally, The Court of Justice of the European Communities often an abstract interpretation of general principles of law in general, seem to be convinced not to let Hue based on the reasoning. In this paper, the purpose of the study is of The Court of Justice of the European Communities and the creation of active principles, with the contribution limits of the doctrine dispute also be discussed.