國會議員選區劃分造成票票不等值之救濟途徑──臺灣與日本之比較

Remedies for Unequal Value of Vote Caused by the Division of Legislative Electoral District: A Comparison between Taiwan and Japan

依據憲法第一百二十九條，每人一票，票票等值。依據憲法第十六條，有權利斯有救濟。因此，選舉制度、選區劃分讓選票價值出現落差時，必須賦予人民救濟途徑。但在臺灣與日本都不存在選舉人對選區劃分聲明不服之法律依據，為填補此法律漏洞，日本擴張適用對選舉效力之訴訟。本文認為，在現行法制下，選舉事件可以援用公職人員選舉罷免法或行政訴訟法救濟，但從事件性質與訴訟類型選擇，選舉人對立法委員選舉因選舉區劃分造成票票不等值之訴訟，應以選舉無效訴訟進行最為妥當，此與實務見解相仿，亦與日本之處理方式不謀而合。但對立法委員選區劃分進行之訴訟，其目的在進行違憲審查，與選舉無效訴訟之目的在糾正選務辦理機關選務辦理的瑕疵，兩者之目的並不相同，在實體要件之解釋適用以及判決內容也有若干差異，故將對立法委員選區劃分進行之訴訟正式立法成一個獨立的訴訟類型加以規範，會是最妥當的終極目標，至於具體要歸納在選舉訴訟或是行政訴訟？本文以為，出自訴訟爭執對象之特殊性，在選舉訴訟與行政訴訟之外，增訂在選罷法第三章第四節選舉區一節中，或許也是可能的選項。

According to Article 129 of the Constitution, “one person, one vote rule” is the voting power of a person. As well, Article 16 of the Constitution states that “where there is a right, there is a remedy”. Therefore, when there is a gap in the value of votes in the electoral system and apportionment, people have the right to remedies. However, there is no legal basis for the electors to request a review for the apportionment of electoral district in Taiwan and in Japan. To remedy this legal loophole, Japan has extended the application of lawsuit on invalid elections. This article argues that under the current legal system, election incidents can be prosecuted according to the Civil Servants Election and Recall Act or the Administrative Litigation Act. Specifically, given the nature of the incident and the types of litigation, it is most appropriate for people to file an election invalidation lawsuit to dispute the uneven distribution of the number of legislators. This approach is similar to judicial opinion of and coincides with Japanese law. The purpose of the lawsuit against the division of the legislative electoral district is to conduct judicial review, whereas the purpose of the election invalidation lawsuit is to correct the flaws of election affairs by the election commissions. The two purposes differ in terms of the elements of interpretative application and the contents of judgments. Therefore, the most appropriate ultimate goal is to formally regulate the lawsuit against the division of the legislative electoral district. Moreover, the article suggests that due to the particularity of the dispute, in addition to choosing between election litigation and administrative litigation, additional provisions in Section 4, Chapter 3 of the Election and Recall Act could be an option for categorizing the lawsuit.