| 英文摘要 |
Since the proclamation of the Judicial Yuan Interpretation No. 791, the established judicial practices regarding the infringement of the legal interest in relation to spousal relationship have been undermined. The argument presented in the above-mentioned Judicial Yuan Interpretation resonated with some judges, who then started to cast doubt on, or even deny, the“spousal rights”in their legal decisions. However, it is disputable whether such judgments made by the district courts represent the point and purpose of Interpretation No. 791. Arguably, decriminalizing adultery does not imply an utter disregard of the legislative discretion over the formation and protection of the spousal rights. This paper attempts to strengthen the realm and boundaries of legislative discretion. In constitutional review, it is proposed that the constitutional court not only is required to balance the conflicting substantive principles, but also is obligated to consider the democratic principles to determine whether the cases are within the discretion of the legislature. Furthermore, the constitutional court should manifest its respect for legislative discretion by virtue of the selection of control density and the type of decision. Along this line of thought, this paper suggests an admonitory decision to declare the unconstitutionality of criminalizing adultery, which to a greater extent shows the constitutional court’s respect for legislative discretion. |
