我國違憲審查制度之探討

Introduction of Judicial Review system in Taiwan

本文主要討論司法院依照憲法第一百七十一條、第一百七十三條、第七十八條、第七十九條第二項及憲法增條條文第五條第四項規定，司法院有解釋憲法，並有統一解釋法律及命命之權，故解釋法律有無牴解憲法，係專屬司法院大法官之職掌，並由司法院大法官所獨攬。

This article focuses on discussion of Constitution Article 171, Article 173, Article 78, Item 2 of Article 79 and Item 2 of Article 4 in Amendment of the Constitution. In accordance with the Constitution, it is the right of the Judicial Yuan to interpret the Constitution, and unify the interpretation of Law and Order. Therefore, it is the liability for grand justices of Judicial Yuan to interpret whether the Law violates the Constitution. It is monopolized by the grand justices of Judicial Yuan. However, the grand justices always declare violation of Constitution by interpreting as "prescription". This causes dispute on the law declared violating the Constitution between the date of interpretation and the date of prescribing. If the authority conducted administrative disciplinary action according to "Law that will definitely be declared to prescribe", what would be the efficacy? Whether the party can apply for interpretation in accordance with the appeal method in Grand Justices No 177, affects the protection of people's right of appeal in Constitution. This article will firstly introduce the basic concept and genesis of the investigating system of violation of Constitution. Then, the types of investigating system of violation of Constitution, and the limits of jurisdiction of the investigating authority of violation of Constitution of our country will be discussed. In addition, we will also discuss the efficacy of interpretation by grand justices, allowing temporary disciplinary action, and the appeal method when interpretation of grand justices prescribes in the future. Finally, it concludes that the grand justices should declare "prescription" in caution and under the exceptional situation only. Besides, the legal effect between “prescribing” and “prescription” should be distinguished. Besides, it should be expressed stipulated in writing that the original case should not applicable to the original Law in order to protect people's right of appeal and right of action in Constitution.