從文化憲法建構文化權利入憲──以釋字第八一三號解釋為例

The Study on Incorporating Cultural Rights into Constitution Base on Cultural Constitution: An Example of Interpretation No. 813

近期社會上有關推動文化權利入憲的呼聲陸續出現，期望藉由在憲法中落實參與文化生活與接近文化藝術的權利、藝術自由與語言權等，使文化精神涵蓋於立法及行政，以具體實踐文化基本法第25條保障人民文化權利、促進文化永續發展的宗旨。為探究此議題，本文以文化憲法的精神作為基石，深入分析文化基本權的概念，從而得出為達成使人民追求自我實現的目標，文化基本權本其主觀權利與客觀法功能，共構出我國文化憲法保障人民的基礎。而以此為出發點，將文化精神擴散至立法與行政、涵蓋文化治理與文化行政，文化權利入憲有其必要。釋字第八一三號解釋雖保障了人民的財產權，開創歷史建築登錄應予相當補償的先例，然就人民文化權利的維護隻字未提。假若文化權利得以入憲，於本案則不僅可具宣示作用，提升社會整體對於文化資產的關心與保存意識；另在實質上，亦可使人民在文化資產保存的過程中有更明確的依據主張自身權利，不再只是被動地消極等待國家加以保護。由此可知，唯有真正保障人民的文化基本權利，促進其對憲法的認知與感情並凝聚文化認同，方能落實文化永續的文化國目標。

Recently, there have been calls for promoting the incorporation of cultural rights into the constitution. It hopes that by implementing in the constitution the rights to participate in cultural life and access to culture and art, artistic freedom and language rights, the spirit of culture can be covered in legislation and administration, and cultural practices can be concretely implemented. Article 25 of the Basic Law aims to protect people’s cultural rights and promote the sustainable development of culture. To explore this issue, this paper takes the spirit of cultural constitution as the cornerstone, and deeply analyzes the concept of cultural fundamental rights, and concludes that in order to achieve the goal of enabling people to pursue self-realization, cultural fundamental rights are based on their subjective and objective legal functions, which constitute our country together. The cultural constitution guarantees the foundation of the people. Taking this as a starting point, it is necessary to spread the cultural spirit to legislation and administration, covering cultural governance and cultural administration, and it is necessary for cultural rights to be incorporated into the constitution. Although Interpretation No. 813 protects the property rights of the people and creates a precedent that the registration of historic buildings should be compensated accordingly, it did not mention the protection of the people’s cultural rights. If cultural rights are incorporated into the Constitution, this case will not only have a declarative role, and enhance the society’s overall awareness of the concern and preservation of cultural assets; in essence, it will also enable people to have a clearer basis for claiming in the process of preserving cultural assets. Their own rights are no longer just passively waiting for the state to protect them. Thus, only by truly protecting the basic cultural rights of the people, promoting their cognition and feeling of the Constitution, and consolidating cultural identity, can the goal of a culture state of cultural sustainability be realized.