The Constitutional Court has been in operation since the "114-year Constitutional Court Judgment No. 1" was released on December 19 last year. The three justices Cai Zongzhen, Yang Huiqin and Zhu Fumei continued not to participate in the review. However, they issued a "legal opinion of disagreement" after the judgment. They published the article in "Taiwan Legal Person" and authorized "Fayuan Legal Network" to obtain royalties. In this regard, the Constitutional Court stated that the three people did not participate in the substantive review, but wrote letters outside the system to express their personal opinions. This is unprecedented in the practice of judicial interpretations and constitutional judgments. The relevant content is only private legal opinions outside the trial and is not the content of the Constitutional Court's ruling.
Legislators from the Kuomintang and the People's Party joined forces to pass the amendment to the Constitutional Procedure Law on the third reading at the end of 2024, which requires at least 10 justices to participate in the review and 9 people to agree before it can be declared unconstitutional. As a result, the Constitutional Court with only 8 justices has been idling for a year. On December 19 last year, the court issued the "114-year Constitutional Judgment No. 1", declaring the amendment to the Constitutional Procedure Law to be unconstitutional and invalid, allowing the Constitutional Court to be resurrected. However, at the time, Justices Cai Zongzhen, Yang Huiqin and Zhu Fumei believed that the review was illegal and were unwilling to participate in the review.
Although Cai Zongzhen, Yang Huiqin and Zhu Fumei did not participate in the review, they successively submitted "disagreeing legal opinions" to express different positions, published the article in "Taiwan Legal Person", and authorized "Fayuan Law Network" to obtain the royalties. The relevant article still bears the title of justice and uses terms such as "this seat". However, because the three people did not participate in the review, the relevant article is not the content of the Constitutional Court's ruling, and the copyright does not belong to the Constitutional Court.
It is understood that the three justices did not participate in the review of the case's merits, and therefore had no way of knowing the review process and judgment results; their legal opinions should have been formed after access to relevant documents and materials during the acceptance or rejection stage of the case. Legal experts pointed out that judging from the content of the three people’s dissenting opinions, they mainly express opinions on whether the case should be accepted. They are legal opinions formed after contact with relevant documents during the acceptance stage. They are different in nature from participating in the entity review and expressing different opinions on the content of the judgment.
In response to this, the Constitutional Court responded that three justices who did not participate in the substantive review expressed their personal opinions in letters outside the system. This move has never been seen in the history of justice interpretation and constitutional judgment practice. The relevant content is only private legal opinions outside the trial and is not part of the content of the Constitutional Court's ruling. In addition, regarding the collection and presentation of relevant articles in the private legal database, it is the editing work and academic judgment of private institutions, and this court has no objection to this.
According to analysis by legal professionals, the three justices did not participate in the substantive review. They wrote and contributed articles on legal issues in their personal capacity. There is no express prohibition on the procedure. In principle, the copyright of the article and the licensing income also belong to the author. However, the key to the dispute is not simply whether they can contribute or receive remuneration, but that the three people still have As a current justice, the article also bears the title of justice and uses terms such as "this bench" that usually appear in judicial opinions. It is easy for the outside world to misunderstand that the relevant article is a formal dissent of the Constitutional Court, and even confuse it with a dissent submitted after actually participating in the review.
The person pointed out that the three people neither participated in the substantive review nor could participate in the exchange of opinions and debates between other justices. The legal opinions they put forward are still essentially different from the different opinions formed in the formal judicial process. Even if the relevant practices may not violate the current regulations, if the current justice publishes articles that are highly related to the Constitutional Court's judgments by title, and then authorizes private databases to obtain profits, it may still cause doubts in judicial ethics and social perception. It also highlights the lack of clear regulations in the current system on how justices who do not participate in the review express legal opinions to the outside world.
