- 期刊
論人民聲請「裁判憲法審查」所稱的「憲法上權利」－從憲法訴訟法第60條第5款之規定談起
A Discussion on the "Basic Rights Protected Under the Constitution" Applying in "a Petition for Constitutional Complaints Against a Final Court Decision Lodged by People": Viewing from Article 60 Subsection 5 of Constitutional Court Procedure Act
摘要
2022年1月4日施行的憲法訴訟法，迎進「人民聲請裁判憲法審查」新制（下稱裁判憲法審查），該法第60條就聲請書應記載事項共有8款規定，其中第5款稱：「確定終局裁判……違憲之情形，及所涉憲法條文或憲法上權利。」同法第61條第1項規定：「本節案件於具憲法重要性，或為貫徹聲請人基本權利所必要者，受理之。」顯然，「憲法上權利」是人民聲請「裁判憲法審查」時，叩開憲法法庭大門的敲門磚之一。故本文試圖從憲法人權保障動態演進的觀點析論「憲法上權利」，目的是使新的「裁判憲法審查」制度能與時俱進地保障憲法訴訟法所稱的「憲法上權利」或「聲請人基本權利」。
並列摘要
The Constitutional Court Procedure Act which welcomed a new institution referred to as "a petition for constitutional complaints against a final court decision lodged by people" (hereinafter referred to as "constitutional complaints") was put into practice on January 4th, 2022. In Article 60 rules contents of pleadings of constitutional complaints in eight subsections, among in Subsection 5 is included: "the extent to which the legal provision applied in a final court decision or the decision itself contravenes the Constitution and the relevant constitutional provisions or basic rights protected under the Constitution." Also, in Article 61 Paragraph 1 of the same Act is mentioned: "Petitions under this Section are admissible insofar as they concern principles of constitutional significance or it is necessary to satisfy the petitioners' basic rights protected under the Constitution." Obviously, when people lodge such "constitutional complaints", the "basic rights protected under the Constitution" are one of the crucial points to accessing the gate of the constitutional court. As a result, this article attempts to analyze and discuss the "basic rights protected under the Constitution" from the view of the dynamic evolution of constitutional rights protection. The purpose is to make constitutional complaints as a new institution can keep up with the time to safeguard which called the "basic rights protected under the Constitution" or "the fundamental rights of petitioners" in the Constitutional Court Procedure Act.