立法院人事同意權行使之正當程序

The Due Process of the Legislative Yuan’s Exercise of the Power of Personnel Approval

本文旨在討論立法院就憲法機關人事行使同意權之制度，是否能適切反映由權力分立所衍生出來的制衡關係，並依符合事理的方式安排同意程序。由於對大法官行使人事同意權不僅涉及制衡，亦有強化其民主正當性，期待憲法法庭得發揮社會政治上之整合功能，是本文認為，就司法院院長、副院長及大法官行使人事同意權，其通過門檻容有必要調整為超過全體立法委員三分之二或其他加重多數的同意，俾使總統在提名相關人選時，能與反對黨妥為協商求取共識，以利憲法法庭發揮其應有的整合功能。與此相對，就考試院與監察院相關人事的同意程序而言，由於前者所掌國家權力在性質上仍應歸屬於行政權之一環，而後者握有主要原屬立法者所行使之準司法權，故現制對其等人事之同意程序安排應屬合理。

This article examines whether the Legislative Yuan’s exercise of its power of consent over personnel appointments in constitutional organs appropriately reflects the principle of separation of powers and the system of checks and balances. It also considers how this power relates to the functions of the state. Furthermore, it assesses whether the consent procedures are rationally designed.
Given that the exercise of the power of consent over the appointment of Grand Justices not only serves as a mechanism of checks and balances but also enhances the democratic legitimacy of these positions, it is vital for the Constitutional Court to effectively fulfill its integrative function within the socio-political context. Therefore, this article argues that the threshold for approving appointments to the President and Vice President of the Judicial Yuan, as well as to Grand Justices, should be raised to require the consent of more than two-thirds of all members of the Legislative Yuan or another form of a qualified majority. This adjustment would encourage the President to seek broader consensus, particularly with opposition parties, when nominating candidates, thereby enabling the Constitutional Court to perform its integrative function more effectively.
In contrast, the current consent procedures for personnel appointments in the Examination Yuan and the Control Yuan appear reasonable. This is because the powers exercised by the Examination Yuan are mainly administrative in nature, whereas the Control Yuan exercises quasi-judicial powers originally vested in the legislature.