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Back破除修憲高門檻!學者、律師主張先修《憲訴法》設分級制度解套
破除修憲高門檻!學者、律師主張先修《憲訴法》設分級制度解套
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自由时报2 hours agoPolitics2 min readChinaView translation

破除修憲高門檻!學者、律師主張先修《憲訴法》設分級制度解套

針對憲法增修條文第12條修憲門檻過高問題,專家建議設立門檻分級制及透過憲法法庭宣告違憲

Quick Look

立法院修憲委員會召開公聽會,討論憲法修訂門檻過高問題。法律專家傅馨儀與林明鏘建議透過修訂憲法訴訟法、建立門檻分級制,或由憲法法庭宣告現行條文違憲,以解決修憲僵局。

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Why It Matters

我國憲法增修條文第12條設定了極高的修憲門檻,導致過去20年憲法難以修訂。現行規定使得修憲案在公投中面臨極大挑戰。

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我國憲法曾經七度修訂,但第七次修法時因通過門檻極高的「憲法增修條文」第12條,致「憲法」過去20年未能再修訂以因應時代變遷。對此,有律師、法律學者今於立法院修憲委員會表示,要破除修憲公投的「木頭人條款」,唯一解方就是修「憲法訴訟法」,並主張針對修憲案設立「門檻分級」制,確保憲法改得動、守得住更接得上。

立法院修憲委員會今(21)舉行公聽會,討論現行修憲雙重高門檻因應措施、修憲公投不同議題層級化之門檻規定,以及廢除監察院後之監察職權移轉與轉銜機制等議題。

針對現行修憲門檻過高,平鑫國際法律事務所主持律師傅馨儀表示,這項規定使「18歲公民權」等具高度社會共識議題也難通過,更導致「默認者視同反對者」的弔詭現象;面對化解高門檻就須得通過高門檻的「羅斯悖論」,她引約翰.羅爾斯《正義論》及《美國憲法第27修正案》精神建議,降低修憲門檻法案可設計為「兩屆後(等待8年)生效」,排除政黨猜忌。

此外,她主張建立「門檻分級制度」:擴張人民權利事項採低門檻,政府組織權力運作採中門檻,國民主權等核心項目則維持極高門檻,確保憲法「改得動、守得住、接得上」。

台灣大學法學院特聘教授林明鏘則說,《憲法增修條文》第12條讓憲法在過去21年都動彈不得,嚴重違反世代正義原則,他直言,重新制憲成本過高且「憲政時刻」(constitutional moment)已逝,唯有透過「憲法法庭」宣告第12條違憲是成本最低的可行辦法。

而為實現這項作法,林明鏘建議,立法院應著手修訂「憲法訴訟法」第49條,授權憲法法庭審查憲法規範;同時補足大法官缺額,讓憲法法庭起死回生,給予司法機關武器,才能從程序上根本剷除這道「木頭人條款」。

Open Questions

  • 立法院是否會採納修訂憲法訴訟法的建議?
  • 大法官缺額何時能補足?

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