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Back大法官越界2-2》缺席評議仍未解、程序外持續發聲 學者:已違反法官倫理
大法官越界2-2》缺席評議仍未解、程序外持續發聲 學者:已違反法官倫理
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自由时报1 hour agoLaw2 min readChina

大法官越界2-2》缺席評議仍未解、程序外持續發聲 學者:已違反法官倫理

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大法官蔡宗珍、楊惠欽、朱富美因『10加9』門檻未達拒絕參與憲法法庭評議逾300天,判決後仍以大法官職銜發表否定性法律意見,學者張嘉尹、蘇彥圖指出此舉違反法官倫理且削弱憲法法庭權威,警告長期持續將影響其終局裁判功能。

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Why It Matters

立法院修正憲法訴訟法,要求至少10名大法官參與評議、9人同意才能宣告違憲,但當時大法官僅剩8人,導致蔡宗珍、楊惠欽、朱富美拒絕參與評議,另5名大法官則作成宣告修法違憲的判決。

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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逾300天,理由是「10加9」門檻下,僅剩8名大法官無從合法評議,與另5名大法官見解對立。學者張嘉尹、蘇彥圖指出, 3人未參與評議,判決後卻持續以大法官職銜在程序外另發法律意見、否定裁判,已違反法官倫理及損及憲法法庭權威。

立法院先前修正憲法訴訟法,要求至少10名大法官參與評議、9人同意才能宣告違憲,但當時大法官僅剩8人。蔡、楊、朱認為,人數既未達法定門檻,憲法法庭即無從合法進行評議,因此拒絕參與;另5名大法官則持不同見解,並於去年作成「114年憲判字第1號」判決,宣告相關修法違憲。

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東吳大學法律系教授張嘉尹指出,3人是否應參與評議,不能單憑「憲法法庭是合議法院」就得出結論,仍涉及「10加9」條款效力,以及僅剩8名大法官時,憲法法庭究竟能否合法運作的根本爭議。至於她們事後提出的「不同意法律意見書」,則3人既未參與個案審理及評議,就無從提出法定的正式「不同意見書」,文件也未隨憲法法庭裁判公告,性質上只能視為個人的法律意見。

張嘉尹批評,3人若以私人身分發表法律意見,本身並非不能為之,但文件卻仍冠以大法官職銜,部分行文使用「本席」等司法語彙,並直接針對自己任職的憲法法庭判決表達異議。私人法律意見藉由大法官職銜及司法語彙,會取得不同於一般學術論著的權威,也容易使外界混淆私人意見與正式裁判意見,明顯已經違反法官倫理問題。

長期研究憲法法院及司法政治的中研院法律學研究所研究員蘇彥圖則指出,蔡、楊、朱對憲法法庭是否合法組成、自己是否負有參與義務,確實有一套法律主張,但「拒絕參與評議」與「判決作成後如何以大法官身分對外發言」,仍是兩個不同問題。

蘇彥圖表示,憲法法庭作為合議法院,其制度功能就是透過合議程序對憲法爭議作成終局判斷,大法官當然可以不同意多數意見,正常情況下也可透過評議及不同意見書留下立場;目前的情況卻是3人拒絕進入評議程序後,又在判決作成後持續從程序外否定裁判。

蘇彥圖說,如果身為憲法法庭成員的大法官,持續以大法官身分對外否定憲法法庭本身的裁判,等同由內部成員削弱法院權威,社會也可能因此質疑,連憲法法庭的大法官都不接受法院裁判,人民又為何要承認、接受憲法法庭的判決。

蘇彥圖強調,這種狀態若長期持續,已不只是5名與3名大法官之間的法律歧見,而會進一步影響憲法法庭作為終局憲法裁判機關的制度功能。即使3人主張拒絕評議具有法律依據,判決後仍以現任大法官身分持續在程序外否定裁判,仍屬另一層次的司法倫理問題。

至於是否應進一步透過彈劾、懲戒等外部機制處理,蘇彥圖則認為,大法官獨立同樣是憲政制度的重要價值,若輕率由政治部門介入,也可能反過來傷害司法獨立;現階段更重要的,仍是讓法律共同體及制度內部正視這項僵局,避免憲法法庭權威持續遭到削弱。

What to Watch

AI outlook — possibilities, not facts

  • 立法院將檢討憲法訴訟法相關條款,以解決大法官人數不足時的評議問題

    Likely · Within months

Open Questions

  • 是否會透過彈劾或懲戒程序處理三位大法官的行為?
  • 憲法法庭是否能在人數不足的情況下恢復正常運作?
  • 此事是否會促成憲法訴訟法的再次修正?

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