處理政黨不當取得財產的憲法思維

Constituional Thinking On Ill-gotten Properties by Political Parties

在東德各邦加入聯邦共和國後，基本法民主憲政秩序溯及適用新加入的邦。基此，處理東德政黨與其附隨組織於威權統治時期累積的大量政黨財產， 必須以民主憲政秩序加以評價。東德政黨法與統一條約提供了處理黨產的法律基礎，本文研究目的則是用憲法思維檢視這個法律內容的憲法正當性。本文先 從民主憲政秩序中的政黨地位與功能，探究其與代議民主間的關聯以及其權利 地位。其次，關於認定東德政黨與其附隨組織取得財產的方式與標準，從憲法 上探討其所取得之財產是否受到憲法保障。東德政黨與附隨組織必須證明所取 得財產符合「基本法實質法治國」原則，始能主張其權利，本文接續探究這個規定的憲法正當性。最後，本文從前述研究得出結論，在民主轉型後，以憲政 秩序評價威權過往的必要性與限制何在。

After the states of German Democratic Republic joined the Federal Republic Germany, the democratic principles and constitutional order of German Basic Law restropect and apply to the East Germany's states. Hence, we should consider how to deal with the enormous properties that acquired through the authoritarian rule by East Germany's ruling party and associations under the democratic principles and constitutional order. The Law on parties and other political association of the GDR and the Treaty on the Final Settlement with Respect to Germany give us the legal basis of this issue. This article aims to use constitutional thinking to examine whether the contents of the Law on parties and other political association of the GDR fit the constitutional standard or not. This article first examines the political party's position and function in the democratic and constitutional order, and exlpores political party‘s correlation with representative democracy and its right and position. Secondly, this article will examine the recognition standard and the ways by which the East Germany's political party and its associations obtained their ill-gotten properties. The political parties and associations of East Germany must prove that the ways they acquired accord with the substantive rule of law principle to insist their right to those properties. This article also explores if this rule fits for the constitutional legitimacy. Above all, after the democratic transition, we understand the necessity and the limits of using consitutionalism to examine the past authoritarian regime.