「比例原則」與「平等原則」作為法規範合憲性審查基準的差異──以憲法法庭113年憲判字第6號判決為說明

The Difference between the Principle of Proportionality and the Principle of Equality as the Standard of Constitutional Review on Laws and Regulations: An Analysis of the TCC Judgment 113-Hsien-Pan-6

警察人員考試相關規則有對欲報考消防員之考生身高做相關限制，憲法法庭於本判決中認其中對女性之身高標準規定，「排除女性應考人之群體比例明顯高於男性，使女性應考試服公職權受不利之差別待遇……」，違反「平等原則」而屬違憲。惟如對本案系爭規定以「比例原則」為基準而審查,則會有何思維與論證上的差異？以及憲法法庭就此一違憲宣告將產生後續何種修法及法院審理的法效果，本文即予相關分析。

The regulations for special civil service examination impose restrictions on the height of examinees for firefighters. However, the Constitutional Court ruled in the TCC Judgment 113-Hisen-Pan-6 that the regulations regarding the restriction on the height of female examinees neglected the fact the total number of female examinees is significantly higher than that of male examinees. This has resulted in discriminated treatment against female examinees for taking civil service examinations and serving as public offices. The regulations at issue were therefore against the principle of equality and were unconstitutional. This article intends to analyze the regulations at issue in this case with the principle of proportionality to explore any differences which may result in on addressing the issue concerned. In addition, this article also examines the legal implications of this judgment to the subsequent amendment of the regulations at issue and to the trial of the court in resolving this issue.