中央與地方分權的司法審查基準

Benchmarks for Judicial Review of Central-Local Separation of Powers

The dispute over division of power between the central and the local governments has been a long-standing problem in Taiwan. As time passes, it seems that this dispute has not been properly treated and resolved. Rather, even more problem awareness’s and discussion subjects have been developed. Even when the scholars have proposed sharing legislative power, this issue cannot be solved. Actually, because the description about the institution of power separation between the central and local governments is not really complete, the principle of equal power is considered as a matter, which should not be applied in related cases. In this paper’s view, consequently, starting from the historical significance of the principle of equal power and the normative structure of the Constitution, further explores the normative nature of the principle of equal power. According to the above mentioned, we can establish the way to apply for this principle. It is discussed the normative nature right equality, and confirm the operative method of right equality. In this way, the subdivision of the matters subject to differentiation can begin. Then, for ensuring such matters exclusive responsibility of the central authorities or local self-government though the legal interpretation of the principle of equal power in concrete terms, especially through abductions and analogies. Only after the interpretation and application of the principle of equal power are fully understood, and the standard of judicial review of the separation of powers between the central and local governments, it can be fully constructed. In the end, this paper attempts to establish a procedure for judicial review of the separation of powers between the central and local governments, and tries to analyze the Judgment 111-Hsien-Pan-6 (the“Ractopamine Pork Case”) to discuss the judges’opinions that still need further clarification. Although this paper agrees with the Judge’s view that food safety is a matter for the central government, it is afraid that his argument is not sufficient.