| 英文摘要 |
The Legislative Yuan passed the third reading of “the Constitutional Procedure Act” on December 18, 2018, which was promulgated by President Tsai on January 4, 2019. It was also announced that Article No. 95 of the Constitutional Procedure Act will be implemented three years after its official proclamation. Hence, the current system of Constitutional Interpretation Procedure exercised by the Justices of the Judicial Yuan will usher in a new era of constitutional review based on judicialization, adjudication, and tribunal-based systems. The core of the new system of the Constitutional Procedure is similar to the Constitution Review system in Germany in which the defining feature of the Constitutional Procedure in Germany is the “tribunal-based” Constitutional review. Although this term is not an official terminology in German empirical laws, practically speaking, such procedure originates from relevant regulations as they permit people to resort to the special constitutional litigation and appeal to the Federal Constitutional Court in light of the violation of their constitutional rights. Moreover, such procedure is of secondary in nature in that it is derived from the final judgment of a court in accordance with all levels and processes of judicial remedial processes that grant people to appeal to the Federal Constitutional Court for further Constitutional interpretation. This form of tribunal-based Constitutional review might appear to be a procedural approach only, but substantially its scope covers a wide range of issues. In terms of constitutional litigation procedure, the objects that people file appeals to include judicial actions embedded in the state’s public powers (court decisions). And in terms of the Constitutional substantive law approach, the scope and review criteria for the constitutional review of the court’s decision by the Federal Constitutional Court involve the division of jurisdiction between the judicial court and the jurisdiction of the professional court. This article preliminarily explores the tribunal-based constitutional review system in Germany to further elucidate its background, normative basis and its implications as well as the controversial issues arising from the practices of the German Federal Constitutional Court and its responses. In light of the practices and new systems of the Constitutional Procedure Act that will take effect on January 4th, 2022 in Taiwan, commentaries and suggestions are also addressed to provide new insights. |
