裁判憲法審查初探

Preliminary Overview of the Judicialization of the Constitutional Review

二○一九年初公布的我國憲法訴訟法之核心，在於引進德國裁判憲法審查制度。裁判憲法審查，意指人民於憲法上所保障之基本權利遭受公權力侵害，於符合用盡法院審級救濟途徑之要件，始得推導出人民針對確定終審法院裁判違憲得向聯邦憲法法院提起的一項憲法訴訟程序。裁判憲法審查於憲法訴訟程序面向，涉及人民訴請客體涵括國家公權力行為的法院裁判；於憲法實體法面向，關涉聯邦憲法法院對於法院裁判進行實體違憲之審查範圍及審查標準，主要係憲法法院審判權與專業法院審判權間權限劃分問題。本文初步探究德國裁判憲法審查制度，主要闡明制度背景、規範依據及法制內涵、德國聯邦憲法法院實務運作衍生之爭議問題及其因應之道。文末評析我國憲法訴訟法相關規範，期為我國於二○二二年一月四日施行憲法訴訟新制之借鏡與參考。

The Legislative Yuan passed the third reading of “the Constitutional Procedure Act” on December 18, 2018, which was promulgated by President Tsai on January 4, 2019. It was also announced that Article No. 95 of the Constitutional Procedure Act will be implemented three years after its official proclamation. Hence, the current system of Constitutional Interpretation Procedure exercised by the Justices of the Judicial Yuan will usher in a new era of constitutional review based on judicialization, adjudication, and tribunal-based systems. The core of the new system of the Constitutional Procedure is similar to the Constitution Review system in Germany in which the defining feature of the Constitutional Procedure in Germany is the “tribunal-based” Constitutional review. Although this term is not an official terminology in German empirical laws, practically speaking, such procedure originates from relevant regulations as they permit people to resort to the special constitutional litigation and appeal to the Federal Constitutional Court in light of the violation of their constitutional rights. Moreover, such procedure is of secondary in nature in that it is derived from the final judgment of a court in accordance with all levels and processes of judicial remedial processes that grant people to appeal to the Federal Constitutional Court for further Constitutional interpretation. This form of tribunal-based Constitutional review might appear to be a procedural approach only, but substantially its scope covers a wide range of issues. In terms of constitutional litigation procedure, the objects that people file appeals to include judicial actions embedded in the state’s public powers (court decisions). And in terms of the Constitutional substantive law approach, the scope and review criteria for the constitutional review of the court’s decision by the Federal Constitutional Court involve the division of jurisdiction between the judicial court and the jurisdiction of the professional court. This article preliminarily explores the tribunal-based constitutional review system in Germany to further elucidate its background, normative basis and its implications as well as the controversial issues arising from the practices of the German Federal Constitutional Court and its responses. In light of the practices and new systems of the Constitutional Procedure Act that will take effect on January 4th, 2022 in Taiwan, commentaries and suggestions are also addressed to provide new insights.