從基本權利保障探討子女最佳利益原則－－以憲法法庭111年憲判字第8號判決為中心

Basic Rights and The Best Interests of the Child Principle Centered on TCC Judgment 111-Hsien-Pan-8

憲法法庭的111年憲判字第8號判決，係以最高法院的確定終局裁定未符憲法規範意旨而予廢棄發回。本案的案例事實，涉及跨國移置子女行為，國際法上就此有國際兒童誘拐公約之設。我國非該公約締約國，故其無法直接適用於我國，能否作為法理補充子女最佳利益原則僅能進行個案權衡的不足，學理上有所爭議。本文嘗試從憲法規範保障父母親權、子女人格權及正當法律程序的角度，闡述得藉由帶返子女有利推定原則作為輔助性準則，妥適地處理親子基本權利衝突。因此，本件判決結果雖可支持，但其理由構成不應由繼續性原則和尊重子女意願原則的角度切入，而應由不法移置行為的評價的切入角度，審視本案所涉歷審裁定，是否足以達至推翻上述不利推定之程度。

In order to more completely protect the basic rights of the people, the Constitutional Procedure Law has introduced a constitutional review procedure for adjudication, so that the Constitutional Court can make a constitutional review on individual cases made by ordinary courts. Constitutional Court’s 111-Year Judgment No. 8 is the first judgment since the Constitutional Procedure Law has been applied. The verdict is a landmark in my country's constitutional procedural law system, because the original purpose of the system of adjudication constitutional review is to ensure that individual case adjudication conforms to the constitutional intent of protecting the basic rights of the people through a special relief procedure. The facts of this case involve transnational transfer of children, and international law has established the International Child Abduction Convention. Although my country is not a party to the Convention, its normative content cannot be directly applied to my country. Whether it can be invoked as a jurisprudence to supplement the deficiency that the principle of the best interests of children in the past can only be weighed on a case-by-case basis, there are academic disputes. This article attempts to escape the limitation of legislative policy decisions. From the perspective of constitutional norms to protect parental rights, children's personality rights and due process of law, it is explained that the principle of the presumption of favorability of bringing back children can be used as a supplementary criterion to deal with parent-children more appropriately. Conflicts of fundamental rights. Based on this, this paper believes that although the result of TCC Judgment 111-Hsien-Pan-8 can be maintained, its reasons should not focus on the judgment of the principle of continuity and the principle of respecting the will of the children, but should start from the evaluation of illegal displacement behavior and examine the past The trial decided whether there was a violation of the Constitution.