謀求轉型正義、財產權與結社權之衡平：釋字第793號解釋的再思考

Seek a Balance between Transitional Justice, Property Rights and the Right of Association：Rethinking on Constitutional Interpretation No. 793

司法院大法官於2020年8月28日公布釋字第793號解釋，宣告《政黨及其附隨組織不當取得財產處理條例》全部合憲。然而，相關爭議並未因而止息。本文針對該條例在釋憲案中之相關爭點，研析及比較合憲及違憲之論點，主張涉及人民團體存續之設立管制，應符合比例原則，並在裁判上加以嚴格審查。《政黨法》第43條第2項僅許政治團體轉型為政黨，不轉型為政黨即被內政部廢止立案，限制其轉型為社會團體及其他團體之自由，不符憲法對結社權之保障及比例原則，有違憲之虞，建議刪除此項規定。
另就不當黨產之處置而言，黨產會之組織位階應予釐清，其委員之產生應由立法院同意以符合民主原則。其處理不當黨產之程序，亦應符合「任何人不應自己審判自己之案件」之法定程序。本文建議不當黨產之處置，應由具有公信力及民主正當性之機關調查及蒐集證據後，依法向民事法院提出告訴。
目的不能讓一切手段合理化，縱使轉型正義及建立政黨公平競爭環境，屬釋字第793號解釋解釋理由書所指之「特別重要之公共利益」，亦不能不恪守程序正義，並應謀求與憲法基本權如結社權及財產權之衡平。

On August 28, 2020, the Constitutional Court ruled Constitutional Interpretation No. 793, declaring all clauses of“The Act Governing the Settlement of Ill-gotten Properties by Political Parties and Their Affiliate Organizations (Ill-gotten Property Act)”are constitutional. However, the related disputes did not stop. This article focuses on the disputes related to Ill-gotten Property Act, analyzes and compares the constitutional and unconstitutional arguments, and advocates that the establishment of regulations involving the existence of people’s organizations should comply with the principle of proportionality and judge by strict scrutiny test. Article 43, Paragraph 2 of the Political Party Law only allows political organizations to transform into political parties. If they do not transform into a political party, they will be abolished by the Ministry of the Interior, restricting their freedom to transform into social organizations and other organizations. This does not comply with the Constitution’s protection of the right of association and the principle of proportionality. It is likely to be unconstitutional, and it is recommended to delete this provision.
On the other hand, the organizational level of Ill-gotten Party Assets Settlement Committee should be clarified, and the selection of its members should be approved by the Legislative Yuan to comply with democratic principles. The settlement procedures of ill-gotten properties by political parties should also comply with the legal procedure of“No one can ever be a judge in his own cause”. This article suggests that the evidences of illegal gotten properties should be investigated and collected by an agency with credibility and democratic legitimacy before filing a complaint to the civil court in accordance with the law.
The ends do not justify the means, even though transitional justice and the establishment of a fair competition environment for political parties are ''particularly important public interests'', they must abide by procedural justice and should seek a balance with the basic rights of the constitution such as the right of association and property rights.