行憲前立法之研究

A Study on the Pre-Constitution Era Promulgations

依釋字第573號解釋所述，國民政府於行憲前所頒布的各種立法，只要未經修正或廢止，一直到今日仍為各級法院於裁判時所應適用。惟因其本質上係中國國民黨一黨所完成的立法，縱應肯認其於行憲前屬於國法，惟於今日是否仍應肯認其法律位階，值得探討。依憲法實施之準備程序第1條或憲法第170條之規定，帶有高度訓政色彩之國民政府時期部分立法牴觸憲法之瑕疵。雖然國民政府未曾於該條規定指定之期限前，完成修正或廢止牴觸憲法之法律，惟如寬認因動員戡亂之故，可延長法律檢查之期限，則參照釋字第261號解釋之精神，似得認所有行憲前立法，應自1992年1月1日起，失其憲法上之法律位階。因此，本文反對釋字第573號解釋所持之理由與結論，並主張監督寺廟條例因未曾修正而失其法律位階之規範效力。

In general, as held by No. 573 of the Judicial Yuan Interpretation, all the Chinese National Government Stage promulgations which were adopted and went into effect before the ROC Constitution still apply to date even if they have never been abolished or amended. However, even they were effective before the Constitution; it is questionable if it is still valid because those acts were made by KMT only. According to Article 1 of the Preparatory Procedure for the Implementation of the Constitution and Article 170 of the Constitution, a part of those promulgations conflict with the current Constitution. Although the Chinese National Government never fulfilled the revision task required by the Constitution Delegation, if the task is allowed to extend for the reason of the Chinese Civil War, referring to No. 261 of the Judicial Yuan Interpretation, all the Chinese National Government Stage promulgations should become void since January 1st, 1992. As a result, this study claims that since then the Act of the Supervision of Temples is no more a valid law; however, it is against No. 573 of the Judicial Yuan Interpretation.