2023年民事程序法發展回顧：民事訴訟法之憲法化

Annual Review of 2023 on the Civil Procedural Law: The Constitutionalization of Civil Procedural Law

所謂民事訴訟法之憲法化，係指程序基本權之保障滲透入民事訴訟法（及家事事件法、強制執行法等其他民事程序法規），而包含憲法上訴訟權保護體系之建構及其於民訴法上之具體落實二階段。我國民訴法憲法化之進程，係開啟自1980年以來學說理論之耕耘，嗣逐漸於法律制定、司法裁判收穫成其成果；其中，司法裁判可謂當前推進民訴法憲法化之要角：訴訟權之保護體系有待憲法法院考量民訴法之原理、特性予以確定，而訴訟權之保障則有賴民事法院從事合於憲法（訴訟權）之法律解釋。有鑑於此，本文乃以憲法法院及最高法院對於民事訴訟事件之訴訟權保障所示見解為中心，並兼及家事、商業、智慧財產、強制執行等其他類型之事件，一面整理、歸納實務之發展狀況，一面初步分析、檢討其妥適程度，以供後續研討之用。

The so-called constitutionalization of civil procedural law refers to the permeation of the protection of fundamental procedural rights into civil procedural law (and other civil procedural regulations); this encompasses two stages: first, the construction of a constitutional system for the protection of the right to litigation, which is guaranteed by Article 16 of the Constitution of the ROC and is equivalent to fundamental procedural rights, and, secondly, the implementation of the protective system in civil procedural law. The progress of the constitutionalization of civil procedural law in Taiwan began with the theoretical groundwork laid by scholars since 1980, attributed particularly to the Civil Procedural Law Research Foundation; this has been gradually yielding results in legislation and judicial rulings, as we can see quite a few court judgments or legislative explanations citing the protection of the right to litigation. Among the mentioned three types of actors for constitutionalization of law, the academics, the courts, and the lawmakers, judicial rulings play a key role in advancing the constitutionalization of civil procedural law: the protection system for the right to litigation awaits the Constitutional Court's consideration of the principles and characteristics of civil procedural law for confirmation, while the protection of the right to litigation relies on civil courts to interpret the civil procedural law in orientation or conformity of the constitution, or to further develop it; without the cooperation of the courts, legal theories would not have practical effect, and lawmakers would not consider the urgency for legislation. In light of this, this article focuses on the rulings of the Constitutional Court and the Supreme Court regarding the protection of the right to litigation in civil cases, and also takes other types of cases such as family, commercial, intellectual property, and compulsory enforcement into account; it observes and summarizes the stand of current development, with preliminary analysis and review of its appropriateness provided for further discussion.