論婚姻平權釋憲案之法理意義與我國稅捐法制的影響：以德國法及德國聯邦憲法法院有關判決作為比較

司法院釋字第748號解釋，以憲法第22條婚姻自由權及第7條平等權為依據，開啟我國為同性伴侶提供立法規範予以保護的可能，是一個具憲法上重大意義之里程碑式的憲法解釋。在即將到來之新制中，婚姻配偶與同性伴侶在稅法上是否應獲得相同之對待的法律疑問，首先必須探究，我國現今稅法規定，是否對於婚姻，對於婚姻配偶存在著具有「促進婚姻」的法律規範？答案顯然並非如此，蓋因所得稅法之強制夫妻合併申報所得稅，就是一個歧視婚姻的立法，此法使得處於婚姻下之納稅義務人與配偶，陷入稅捐上極為不利益的地位。與我國現制相類似之德國稅法規定，早在1957年時，就已經被德國聯邦憲法法院宣告規範違憲，但我國之司法院釋字第318號解釋、第696號解釋，卻依然認為強制夫妻合併申報所得稅為合憲。因此，與一般論者主觀所認定之事實剛好相反，我國稅捐法絕非一直都是促進婚姻、對於婚姻配偶有利的規定，尤其是所得稅法對於婚姻強制合併申報，反而是一種欠缺正當化理由的稅捐歧視。再加上，我國遺產稅與贈與稅法，對於婚姻與婚姻之配偶的待遇，立法價值與所得稅法並非一致，甚至是相互矛盾。從而，我國稅捐立法必須先自行改進本身的問題，才能面對同性伴侶基於平等原則應給予保護立法的新趨勢。

關鍵字

同性伴侶；婚姻平權；平等原則；婚姻締結自由；制度保障；價值決定；釋字第748號；折半乘二制；歧視禁止；促進誡命

並列摘要

Interpretation No. 748 of Taiwan's Constitutional Court (Judicial Yuan) declared that same-sex couples have the same rights to marriage under the Article 22 of the Constitution, the right to freedom of marriage, and the right to equality under Article 7, providing the possibility for amending or enacting legal provisions to protect the rights of same-sex couples, which is really a constitutional milestone. In the face of the upcoming new system, whether married spouses and same-sex couples should be equally treated in the tax law, is a legal question. First, we must examine whether Taiwan's current tax laws related to marriage and marriage partners include the legal norms of marriage promotion obligation. The answer is, however, obviously negative. The income tax law obligating the husband and his wife to jointly file income tax is a law that discriminates marriage partners and against marriage. This law makes taxpayers and spouses under marriage extremely unprofitable in taxation. The German personal income tax law, which was similar to Taiwan's current system, was declared unconstitutional by the German Federal Constitutional Court as early as 1957. However, the interpretations No. 318 and No. 696, still insists that husband and wife obligated to jointly file income tax is constitutional. Therefore, it is exactly the opposite of what commentor generally believes, Taiwan's income tax law is not a regulation that promotes marriage and favors the marriage spouse. The current income tax law is a kind of tax discrimination without reasonable justification. In addition, the legislative values of the treatment to marriage and married spouses of Taiwan's estate tax and gift tax law are not consistent with the income tax law, even contradictory. Therefore, Taiwan's taxation legislation must first cope with its own problems in order to face the new issue of legislation for protecting same-sex couples' rights based on the principle of equality.

並列關鍵字

same-sex couple ； equal right to marriage ； principle of equal treatment ； freedom of marriage ； institutional guarantee ； decision of value ； Constitutional Interpretation No. 748 ； discounted halftwo taxation system ； prohibition of discrimination ； commandment of promotion