以程序補強明確性？──論司法院釋字第767號之於藥害救濟及其擴散效應

法律明確性作為法治的基本要求，我國釋憲實務長期以「意義非難以理解」、「為受規範者所得預見」且「可經由司法審查加以確認」三個基本要素，搭配重要性理論進行違憲審查。釋字第767號解釋似乎別開蹊徑，指出了個案中（醫事人員的）告知程序補強法律明確性之可能。本文認為，在藥害救濟的脈絡下，此類告知並非嚴格意義的行政程序而欠缺一般對行政程序之規範要求與監督機制，則至少應同時承認對申請駁回救濟時，對當初是否踐行告知程序進行實質審查，以確保受規範者（一般民眾）不致承受過重的法規認知負擔。整體而言，本案所開之蹊徑，固不致在憲法或一般行政法的層次根本改變法律明確性之規範內涵，但可能在個別行政管制之領域中發揮類似本案的補強效果。 Vagueness doctrine, which is a crucial element of the rule of law, has been recognized by the Taiwanese Constitutional Court (TCC) and utilized as a standard for judicial reviews. According to TCC, vagueness doctrine includes comprehensibility, foreseeability, and judicial reviewability. J.Y. Interpretation No. 767 apparently includes another factor to vagueness doctrine, i.e., a process of notice-giving. No. 767 denies a drug injury remedy because victims have been duly notified of the risks of drug injury during their treatment as a part of the process of notice-giving required by the medical law. However, the legal basis of such denial (according to the Drug Injury Relief Act) is arguably vague. To ensure the participants can foresee the risk of drug injury and possible denial of remedy, the judiciary must review the implementation of the process of notice on an ad hoc basis. With the function of notification, the disputed article in the Drug Injury Relief Act is not unconstitutional. However, because the process of notice is generally not included in the daily lives of people, this new factor does not fundamentally change the vagueness doctrine in constitutional law or administrative law, as a general matter