法官聲請釋憲案例之評析

Commentary on Cases Involving Judges Petition for Constitutional Interpretation

自釋字第317號解釋開啓法官確信其應適用之法律違憲而得聲請釋憲之程序後，迄至2024年3月31日止，依本文之統計，法官聲請釋憲之案例（包括其中有人民聲請釋憲而併案審理者）共有67件。其中認同法律違憲之案例有32件、部分認同部分不認同法律違憲之案例有10件、不認同法律違憲之案例有25件。而25件不認同法律違憲之案例中，有2件嗣後變更見解改為宣告該法律違憲。又其中解釋或判決主文雖未宣告法律違憲，但將系爭規定限制其適用條件或範圍所為「限制性合憲解釋」或要求有關機關檢討改進之「警告性解釋」，亦是一種間接承認法律確有違憲疑慮之表現。涉及高度政治性法律侵害財產權有違憲疑義之案例，聲請釋憲之一般法官表現其維護「人權正確」之形象，但大法官不認為違憲而表現其「政治正確」之對比，令人感嘆驚奇！

Interpretation No. 317 opens the procedure for judges to petition for an interpretation of the Constitution if they believe that the applicable law is in conflict with the constitution. After that, as of March 31, 2024, according to the statistics in this article, the cases in which judges petitioned for constitutional interpretation (including cases in which also the people petitioned for the interpretation of the constitution and the cases were consolidated for trial). There were 67 cases. Among them, there were 32 cases of agreement, in which the law was declared unconstitutional. There were 10 cases of partial agreement and partial disagreement, and 25 cases of disagreement.
Among the 25 cases of disagreement, there were two cases where the views were subsequently changed and the law was declared unconstitutional. Although the main text of the judgment did not declare the law to be unconstitutional, it did limit the conditions or scope of application of the provisions as with“restrictive constitutional interpretation”or“warning interpretation”that requires relevant agencies to review and improve the law, are also indirect recognition the law does have the appearance of unconstitutionality and controversy.
Cases involving highly political legal infringement of property rights and doubtful unconstitutionality, the ordinary judges who petitioned for the interpretation of the constitution showed their image of upholding the“rightness of human rights”, but the justice did not consider it was unconstitutional and showed its political correctness. The contrast between“human rights correctness”and“political correctness”is surprising!