氣候變遷對憲法健康權「主、客觀效力」之影響

The Impact of Climate Change on the “Subjective and Objective Effectiveness” of the Right to Health in Constitution

氣候變遷之嚴重性對於基本權利之影響呈現在危害人性尊嚴、危害生命權以及危害身體與精神完整權。德國健康權的憲法依據主要在基本法第2條第1項暨第2項第1句。由於基本權利具有客觀效力及主觀效力，當然健康權亦復如此，因此進一步地產生氣候變遷意義下的健康權是否具主觀效力之爭論。另外，我國憲法健康權之詮釋主要係司法院（憲法法庭）之相關解釋、理由書及大法官們各自提出多元豐富的意見書。大多數的大法官、憲法學者皆肯認健康權屬於憲法第22條未列舉之權利。而且我國憲法健康權之效力有幾個特點：複合性權利、憲法不能作為主觀權利之依據、國家負有最低限度之保護義務、已非方針規定性質以及結合平等原則之拘束（例如長期照護醫藥費列舉扣除額之問題對納稅義務人造成差別待遇且對受扶養人造成生存權以及健康權受侵害）。本文歸納與分析德國與我國憲法層次的健康權之特色與異同，提供反思與借鏡。

The seriousness of climate change affects basic rights by jeopardizing human dignity, the right to life and the right to physical and mental integrity. The constitutional basis for the right to health in Germany is mainly found in Article 2, paragraph 1 and paragraph 2, first sentence of the Basic Law. Since basic rights have both objective and subjective effectiveness, and of course the right to health is also the same, there is further debate on whether the right to health in the context of climate change has subjective effectiveness. In addition, the interpretation of the right to health in our country’s constitution is mainly based on the relevant interpretations and reasons of the Judicial Yuan (Constitutional Court) and the diverse and rich opinions issued by the many Judes. Most Judes and constitutional scholars agree with that the right to health is a right not enumerated in Article 22 of the Constitution. Moreover, the effectiveness of the right to health in our country’s constitution has several characteristics: it is a compound right, the constitution cannot be used as the basis for subjective rights, the state has the minimum obligation to protect it, it is no longer a policy directive, and it is combined with the constraints of the principle of equality (such as long-term care medical expenses, this issue of enumeration of deductions results in differential treatment of taxpayers and infringement of the rights to survival and health of dependents). This article summarizes and analyzes the characteristics, similarities and differences of the right to health between the constitutional levels in Germany and my country, and provides us of reflection and reference.