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Back大法官越界2-1》全民恐無所適從!憲法法庭判一套 3人對外另講一套
大法官越界2-1》全民恐無所適從!憲法法庭判一套 3人對外另講一套
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自由时报1 hour agoLaw2 min readChinaView translation

大法官越界2-1》全民恐無所適從!憲法法庭判一套 3人對外另講一套

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憲法法庭大法官蔡宗珍、楊惠欽、朱富美因認為五人法庭組成不合法而拒絕參與評議,但判決後仍以大法官名義發表法律意見主張判決無效,與正式裁判相互否定,引發人民困惑與司法公信力動搖,並警示若形成慣例將破壞司法一致標準與程序正義。

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Why It Matters

憲法法庭原本有制度容納不同意見,大法官若反對主文或理由,可提出協同或不同意見書,隨判決一併公告。但蔡、楊、朱否認五人法庭合法成立,自然不願以正式「不同意見書」承認判決存在;然而三人在裁判程序外仍以大法官名義提出意見,主張判決當然無效,這已不是判決內的多數與少數之爭,而是兩套彼此否定的法律判斷。依司法院釋字第185號解釋、憲法訴訟法第38條,憲法法庭判決對各機關及人民均有拘束力。

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大法官蔡宗珍、楊惠欽、朱富美拒絕參與憲法法庭評議,判決後卻持續以大法官名義另發法律意見,主張5人法庭組成不合法、判決無效。正式裁判與現任大法官的程序外意見彼此否定,不僅讓人民無所適從;若再由大法官帶頭形成慣例,其他法官日後能否比照在判決後另發意見,司法也將難循一致標準。

蔡、楊及朱認為,現任大法官僅8人,未達憲法訴訟法至少10人參與評議的門檻,因此拒絕評議;另5人則認為,若持續將3人計入現有總額,憲法法庭將無法行使職權,因而在極端例外情況下由5人繼續評議並作成判決。不過,三大法官拒絕評議的法律立場,與判決後如何對外發言仍屬兩事。

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憲法法庭原本已有容納不同意見的制度,大法官若反對主文或理由,可提出協同或不同意見書,隨判決一併公告。蔡、楊、朱否認5人法庭合法成立,自然不願以正式「不同意見書」承認判決存在;但3人在裁判程序外仍以大法官名義提出意見,主張判決當然無效,這已不是判決內的多數與少數之爭,而是兩套彼此否定的法律判斷。

依司法院釋字第185號解釋、憲法訴訟法第38條,憲法法庭判決對各機關及人民均有拘束力,人民既須遵守正式判決,卻又看到3名現任大法官以職銜主張判決無效,難免困惑應以何者為準,也會動搖對司法的信任。

司法權並無由選票賦予的直接民意基礎,其權威主要來自憲法授權、正當程序及人民信任;唯有取得公眾信賴,司法判決才有力量制衡行政、立法權,讓權力分立真正落實。如今現任大法官對判決是否有效各說各話,受影響的不只是單一案件,也包括司法權本身的公信力。

另外,普通法院法官面對合議結果,原則上只能在評議程序內陳述意見,並受評議秘密拘束。若三大法官的作法被視為可以接受,其他法官日後能否同樣拒絕評議,再於判決後冠上法官職銜另發意見,司法也須有一致標準;否則,將顯退出程序者反而比遵守程序者擁有更大的發言空間。

「司法院大法官自律實施辦法」要求大法官妥適行使職權、謹言慎行,避免損及司法形象。三名大法官面對的雖是憲法法庭前所未見的組成爭議,但若不釐清裁判外以職銜發言的界線,不僅讓人民無所適從,對其他仍在裁判程序內遵守規則的法官並不公平,也將失去一致標準。

What to Watch

AI outlook — possibilities, not facts

  • 司法院將針對大法官在判決後以職銜發表法律意見的行為制定明確規範或紀律指引

    Likely · Within months

  • 未來憲法法庭的人數爭議將持續引發司法界與公眾的關注與討論

    Possible · Within months

Open Questions

  • 三位大法官是否會因其程序外發言受到紀律處分?
  • 司法院是否會釐清大法官在判決後以職銜發表法律意見的界限?
  • 未來是否會有其他法官效法此種做法,在判決後以職銜發表與正式裁判相反的法律意見?

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