| 英文摘要 |
This article aims to examine the dispute in the Constitution between convention application and domestic law-making and application. The dispute began after an international convention was converted following the enforcement of the“Act to Implement the International Covenant on Civil and Political Rights and the International Covenant on Economic, Social and Cultural Rights”(the International Covenants Implementation Act), resulting in having more than two codes existing simultaneously, thus creating a conflict in domestic law codes. Hence, Constitutional interpreters should resolve the following issues: setting the ranking of the codes, conflict between the present Constitution and content of the conventions, and doubts of applying multiple codes.To regulate the nation’s international exchange activity, the Constitution of Taiwan specifically presets a merging clause in Article 141. The principle of respect for treaties stipulated in the Constitution not only implies a profound meaning that is similar to Germany’s practical principle of friendliness but also embodies the principle’s fixity and openness. Being a special legal reception decision, the International Covenants Implementation Act signifies the nation’s acceptance of the international human rights order. And the disputes that arise from the addition and amendment of related codes should be clarified from the constitutional interpretation. From the angle of the possible litigation types, this article analyzes the interpretation problems of the basic rights involved in the convention.When reference obligations are set by the Act to Implement the International Covenants, it is inevitable that doubt about whether it was referenced and how it was referenced arises. Regarding the question of whether the convention was referenced or not should focus on whether the principle of respect in the Constitution was followed arbitrarily or not arbitrarily. As for the matter of how it was referenced, mediation of the relationship between the principle of respect in the Constitution, trial by the legislature, and law-based administration should be emphasized, especially in the two situations of system approach and legal renewal. Three practical examples are provided for analysis in this study. Lastly, several points for deliberation are suggested regarding the exercise of Taiwan’s constitutional interpretation right, so as to ensure both adherence to conventions and protection of our sovereignty.
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