書籍介紹
英譯司法院大法官解釋：收錄自民國103年至106年大法官作成之釋字第717號至第759號解釋英譯。
目次
No. 717 .…………………………………………………………………...1
Is it unconstitutional to limit the ceiling of the retirement income of public functionaries and the retirement of school teachers and staff to reduce the original amount of the deposit preferential provisions?
No. 718 .……………………………………………………………….....29
Are the provisions of the Assembly and Demonstration Act regarding application for approval which do not exclude urgent and incidental assemblies[y] and demonstrations unconstitutional?
No. 719 .……………………………………………………………….....41
Is the law unconstitutional to require a government procurement win- ning bidder hiring more than 100 employees to recruit a certain per- centage of indigenous people, and to make the substituting payment for failing to comply?
No. 720 .………………………………………………………………….57
Before revision of the Detention Act, what judicial remedies are available for a detainee who disagrees with a decision of the detention house in a grievance proceeding?
No. 721 .………………………………………………………………….63
Are the provisions setting forth the Single Electoral Constituency with Two Votes System for legislator elections, the number of seats of political party representatives, and the 5% threshold for political par- ties therein unconstitutional?
No.722 .……………………………………………………………….....77
Is the relevant provision of Regulations Governing Business Income from Professional Practice which only permits the adoption of accrual
accounting for professional joint practitioners or professional associa- tions collecting and disbursing on behalf of members unconstitu- tional?
No. 723 .………………………………………………………………….88
Is it unconstitutional to promulgate regulations to prescribe the two- year period for declaring National Health Insurance Medical Service Points?
No. 724 .………………………………………………………………….98
Is the provision of the Enforcement Regulations for the Supervision and Guidance of Civil Association of All Levels which specifies that the directors and supervisors of a civil association which has been set a time limit for correction shall cease exercising their powers and au- thorities unconstitutional?
No. 725 .……………………………………………………………..…107
An Interpretation that declares a statute or regulation unconstitutional but invalid only after a period of time currently has no effect on cases for which the Interpretation was sought. Is this unconstitutional?
No. 726 .……………………………………………………………..…119
Is a separate labor-management agreement for working hours and other issues without filing with the competent authority still subject to the restrictions under the Labor Standards Act?
No. 727 .……………………………………………………………..…134
Is the rule that authorizes the competent authority to nullify the resi- dent certificates and related rights and interests of resident military householders who disagree with the reconstruction of old military de- pendents’ villages unconstitutional?
No.728 .………………………………………………………………..…150
Is the relevant provision of the Statutes Governing Ancestor Worship Guilds that guilds existing prior to the promulgation of the Statutes, whether a person is a qualified successor to the guild should be de- termined by its internal regulations constitutional?
No. 729 .……………………………………………………………..…162
Can the Legislative Yuan request investigation files held by the
Prosecution?
No. 730 .……………………………………………………………..…181
Is Article 19, Section 2 of the Implementing Regulations of the Act Governing the Retirement of Public School Teachers and Employees unconstitutional?
No. 731 .……………………………………………………………..…195
If the portion of the Contested Requirement, which stipulates that those who wish to apply for compensation in land in lieu of cash “shall within the period of the public announcement of the expropria- tion” submit their application, is unconstitutional, because the date of the public announcement of the expropriation is used to calculate the period during which individuals who are served a written notice of expropriation issued after that date may apply?
No. 732 .………………………………………………………..….……205
Is it unconstitutional that the provisions at issue allow competent au- thorities to expropriate adjacent lands, which are not necessarily re- quired for transportation, in accordance with applicable laws for the purpose of land development?
No. 733 .………………………………………………………..….……222
Does the Section 2 of Article 17 of the Civil Associations Act regard- ing“ A chair person shall be elected from the standing directors by the vote of directors and, if no such position of standing directors is set, then selection shall be made by the vote among the directors.” violate the Constitution?
No. 734 .……………………………………………………………..…231
The Waste Disposal Act authorizes competent authorities to publish the types of act which could be characterized as an act of environ- mental pollution. Is it consistent with the Constitution to regard the official notices published thereunder, recognizing the unapproved placement of advertisements in designated areas and by a designated
manner as an act of pollution?
No. 735 .………………………………………………………..….……243
Is a no-confidence motion stipulated under Article 3, Paragraph 2, Subparagraph 3 of the Amendments to the Constitution of the Repub- lic of China permitted to be proposed during an extraordinary session of the Legislative Yuan convened due to other specific matters?
No. 736 .………………………………………………………..….……251
1. Is Article 33 of the Teachers’ Act unconstitutional?
2. Is the teacher who claims that his/her rights or legal interests are infringed by the school’s concrete measures entitled to file a law- suit?
No. 737 .………………………………………………………..….……260
Is it unconstitutional that the criminal suspect and his or her counsel only have access to factual issues cited in the detention motion at in- vestigatory stage according to Article 33 Paragraph 1 and Article 101
Paragraph 3 of the Criminal Procedure Code?
No. 738 .………………………………………………………..….……280
1. Is it constitutional for Point 2, Section 1, Subsection 1 of the Op- erating Procedures on the Issuance of Electronic Gaming Arcade Classification Identification for the Electronic Gaming Industry to stipulate that the operating facilities of electronic gaming arcades shall be in compliance with the Self-governing Ordinance?
2. Is it constitutional for Article 5, Paragraph 1, Section 2 of the Taipei City Electronic Gaming Arcades Installation and Manage- ment Self-governing Ordinance, Article 4, Paragraph 1 of the Taipei County Electronic Gaming Arcades Installation Self- governing Ordinance (now invalid), and Article 4, Paragraph 1 of the Taoyuan County Electronic Gaming Arcades Installation Self- governing Ordinance (continuously in effect as of December 25,
2014 by promulgation) to respectively regulate that an electronic gaming arcade should maintain a distance of 1,000, 990 or 800 meters away from certain locations?
No. 739 .………………………………………………………..….……302
Is the requirement set forth in Article 8, Paragraph 1 of the Regula- tion for Encouraging Landowners to Handle Urban Land Consolida- tion (hereinafter “the Encouraging Consolidation Regulation”) to ap- ply for the approval of organizing a preparatory committee by the ini- tiators constitutional? Are the provisions set forth in Article 9, Sub- paragraph 3 and Article 20, Paragraph 1 of the Regulation which mandate that the preparatory committee shall apply for the approval of the proposed consolidation range, Article 9, Subparagraph 6 and Article 26, Paragraph 1 of the same Regulation which mandate that the preparatory committee shall apply for the approval of the consoli- dation project, publicly announce, and notify to the landowners con- stitutional? Are the procedures under the same Regulation regarding that the competent authorities approve the proposed consolidation range and grant a permission to implement the consolidation project constitutional? Is the ratio for reaching an agreement set forth in Arti- cle 58, Paragraph 3 of the Equalization of Land Rights Act constitu- tional?
No. 740 .………………………………………………………..….……326
Whether a service contract for the solicitation of insurance business between an insurance solicitor and the insurance company to which the solicitor belongs is a labor contract under Article 2 Sub-paragraph
6 of the Labor Standards Act?
No. 741..………………………………………………………..….……341
When an individual applies to this Court for an Interpretation of the Constitution and this Court declares a statute or regulation that has been applied by the court of last instance in its final judgment or rul- ing to be unconstitutional but invalid only after expiry of a prescribed period of time, may the applicant rely on the Interpretation rendered by this Court to seek a retrial of the case or other redress? May the Prosecutor General rely on the Interpretation rendered by this Court to make an extraordinary appeal?
No. 742 .………………………………………………………..….……352
Is it permitted to challenge by filing an administrative appeal or initi- ating court proceedings in an administrative court a specific part of an urban plan modification based on a periodic Comprehensive Review of the urban plan, if that specific part either directly restricts the rights and privileges of specific individuals within a certain region or of an identifiable group of individuals, or imposes additional obliga- tions on such individuals?
No. 743 .…………………………………………………………...……369
Whether lands expropriated for the mass rapid transit system may be used for joint development plan?
No. 744 .………………………………………………………..….……383
Are Article 24, Paragraph 2 of the Statute for Control of Hygiene and Safety of Cosmetics and its punishment as provided in Article 30, Paragraph 1 of the same Statute unconstitutional?
No. 745 .………………………………………………………..….……395
1. Is it unconstitutional to disallow earners of salary income to de- duct the full amount of their expenses?
2. The letter ruling issued by the Ministry of Finance characterizes the hourly pay earned by adjunct university teachers as salary in- come rather than as income earned by a practitioner. Is this letter ruling a violation of the constitutional principle of taxation in ac- cordance with the law?
No. 746 .………………………………………………………..….……412
1. Both Article 20 of the Tax Collection Act and Article 51, Section 1 of the Estate and Gift Tax Act impose a failure-to-pay surcharge on the taxes payable but not paid on time. Are these provisions un- constitutional?
2. Ministry of Finance Letter of Tai-Tsai-Shui No.790445422 (April
8, 1991) and Letter of Tai-Tsai-Shui No. 811680291 (October 9,
1992) hold that, if a taxpayer files an administrative appeal against the amount of additional taxes payable as determined by the peti-
tion decision but does not pay one-half of such taxes until after the payment deadline, a failure-to-pay surcharge shall be imposed for that half of the taxes. Are these two Letters unconstitutional?
3. Article 51, Paragraph 2 of the Estate and Gift Tax Act provides that the interests on the taxes payable and the failure-to-pay sur- charges shall accrue from the next day of the payment deadline. Is
it unconstitutional？
No. 747 .………………………………………………………..….……433
Does the landowner have the right to request the user of his or her land to apply for expropriation of the land surface right to the compe- tent authority, if that party carries out road construction by tunneling under or passing over the land to the extent that goes beyond the scope of social responsibility that the owner may be expected to bear, resulting in special sacrifice on the landowner?
No. 748 .………………………………………………………..….……450
Do the provisions of Chapter 2 on Marriage of Part IV on Family of the Civil Code, which do not allow two persons of the same sex to create a permanent union of intimate and exclusive nature for the purpose of living a common life, violate constitution’s guarantees of freedom of marriage under Article 22 and right to equality under Ar- ticle 7?
No. 749 .………………………………………………………..….……482
Are the provisions in the Road Traffic Management and Penalty Act that disqualify a taxi driver who was convicted of certain crimes dur- ing the time period for professional practice for a fixed period of three years and that revoke all categories of driving license held un- constitutional?
No. 750 .………………………………………………………..….……508
Are the provisions that require a graduate from an overseas depart- ment of dentistry to successfully complete training in clinical practice at a medical institution accredited by the competent authorities so as to be eligible to take part in a dentist examination unconstitutional?
XIII
No. 751 ………………………………………………………..….……532
1. Article 26, Paragraph 2 of the Administrative Penalty Act stipulates that an administrative penalty may be imposed on top of a final dis- position of conditional deferred prosecution. Is it a violation of the Constitution? Article 45, Paragraph 3 of the same Act provides that a payment made [for a conditional deferred prosecution] may be deducted from the penalty on an offense committed before the
2011 Amendment of the same Act but yet to be punished. Is it a violation of the Ex Post Facto principle or the doctrine of legiti- mate expectation?
2. Does [the old version of] Article 26, Paragraph 2 of the Adminis- trative Penalty Act, which took effect on February 5, 2006, apply to a final disposition of conditional deferred prosecution?
No. 752 .………………………………………………………..….……574
Cases which are listed under the Code of Criminal Procedure, Article
376, Clause 1 and 2:
1. Is it unconstitutional for a case to be not appealable to the court of third instance if the case is first pronounced guilty in the court of first instance but is later overruled on appeal or where the judge- ment is revoked and the accused is pronounced guilty in the court of second instance?
2. Is it unconstitutional for a case to be not appealable to the court of third instance if the case is first pronounced not guilty in the court of first instance but is later overruled on appeal or where the judgement is revoked and the accused is pronounced guilty in the court of second instance?
No. 753 .………………………………………………………..….……590
1. Does the Gesetzesvorbehalt principle apply to the contract with the National Health Insurance Healthcare Providers? Do the relevant provisions of the National Health Insurance Act authorizing the Competent Authority to issue Regulations Governing Contracting and Management of National Health Insurance Medical Care Insti-
tutions (“Contracting and Management Regulations”) violate the principle of clarity and definiteness of statutory authorization?
2. Are provisions of the abovementioned Contracting and Manage- ment Regulations concerning contract suspension, refusal of reim- bursement, offsets of the period of suspended contract, and deduc- tions of medical expenses exceed the scope of authorization by the enabling statute?
3. Do provisions of the abovementioned Contracting and Manage- ment Regulations concerning contract suspension, refusal of reim- bursement, and offsets of the period of suspended contract violate the principle of proportionality under the Constitution?
No. 754 .………………………………………………………..….……625
Does filing one import declaration form to evade import duty, com- modity tax, and business tax constitute one single conduct or multiple conducts? Do the combined penalties for the tax evasions violate the principle of double jeopardy embraced by a rule-of-law nation?
No. 755 .………………………………………………………..….……638
According to Article 6 of the Prison Act and Article 5, Paragraph 1, Subparagraph 7 of its Enforcement Rules, inmates are not allowed to seek remedies in court. Does the foregoing contradict Article 16 of the Constitution, which protects people’s right to institute legal pro- ceedings?
No. 756 .………………………………………………………..….……659
1. Does Article 66 of the Prison Act violate the right to privacy of correspondence protected under Article 12 of the Constitution?
2. Do Subparagraphs 1, 2 and 7, Article 82 of the Enforcement Rules of the Prison Act exceed the authorization of the enabling statute, namely the Prison Act?
3. Does Paragraph 3, Article 81 of the Enforcement Rules of the Prison Act violate the principle of legal reservation in Article 23 and freedom of expression in Article 11 of the Constitution?
XV
No. 757 .………………………………………………………..….……681
Whether the Applicant of J.Y. Interpretation No. 706 can directly use the payment receipt issued by the Execution Court as input tax cer- tificate?
No. 758 .………………………………………………………..….……693
Should a case filed by a landowner pursuant to Article 767, Paragraph
1 of the Civil Code be a dispute arising from a relationship in private law to be adjudicated by ordinary courts, not being influenced by the fact that the means of attack and defense of the two parties involve disputes arising from a relationship in public law?
No. 759 .………………………………………………………..….……699
Which court shall adjudicate disputes where surviving relatives of staff employed by the former Taiwan Provincial Water Supply Com- pany Ltd. claim survivors’ compensation?
Index .…………………………………………………………..….……710
Relative Laws or Regulations …………………..…………..….…710
Keywords ……………..……………………….…………..….……775
Translators ……………..……………………….…………..….……847
編／著／譯者簡介
Chao-Tien CHANG （張兆恬）
S.J.D., University of Pennsylvania
Assistant Professor, National Chiao Tung University School of Law
Chen-Hung CHANG（張陳弘）
S.J.D., American University Washington College of Law
Adjunct Assistant Professor, School of Law, Soochow University
Ming-Woei CHANG（張明偉）
S.J.D., Golden Gate University School of Law
Professor of Law, School of Law, Fu-Jen Catholic University
Chung-Lin CHEN（陳仲嶙）
S.J.D., University of Wisconsin-Madison
Professor and Director, Institute of Law for Science and Technology, National
Tsing Hua University
Yen-Chia CHEN（陳彥嘉）
J.D., Indiana University
Adjunct Assistant Professor of Law, Department of Law, Aletheia University
Chuan-Ju CHENG（鄭川如）
Ph.D. in Law, University of Washington
Associate Professor of Law, College of Law, Fu-Jen Catholic University
Chun-Yih CHENG（程春益）
Postgraduate Studies, University of Oxford
Managing Partner, Formosa Transnational Attorneys at Law
John Chia-Chieh CHENG（鄭家捷）
J. D., Saint Louis University, Attorney at law, admitted in the state of New
York
Associate Professor, Languages Department, National Yun Lin Univeristy
Eleanor Y.Y. CHIN（金玉瑩）
Ph.D., Shanghai University of Finance and Economics School of Business Ad- ministration
LL.M., Soochow University School of Law
Managing Partner, Chien Yeh Law Offices
Chi CHUNG（鍾騏）
S.J.D., Harvard Law School
Assistant Professor, Department of Public Finance, College of Social Sciences, National Chengchi University
Hsiu-Yu FAN（范秀羽）
J.S.D., University of California, Berkeley School of Law
Assistant Professor of Law, Soochow University School of Law
Spenser Y. HOR（何曜琛）
J.D., Southern Methodist University School of Law
Chief Counselor, Chien Yeh Law Offices
Jimmy Chia-Shin HSU（許家馨）
J.S.D., The University of Chicago Law School
Associate Research Professor, Institutum Iurisprudentiae, Academia Sinica
C.Y. HUANG (黃慶源)
S.J.D., Harvard Law School
Managing partner, Tsar & Tsai Law Firm
Ed Ming-Hui HUANG （黃銘輝）
S.J.D., University of Wisconsin-Madison
Associate Professor of Law, Department of Law, National Taipei University
Wei-Feng HUANG（黃偉峯）
J.D. Tulane University
Consultant of THY Taiwan International Law Offices
Szu-Chen KUO（郭思岑）
LL.M., Duke University
Clerk for the Justice, Constitutional Court, Judicial Yuan
Lawrence L. C. LEE（李禮仲）
S.J.D., School of Law, University of Wisconsin
Associate Professor and Chief Executive Office, Chain & Franchise Management and Legal Compliance Research Center, National Taipei University of Business
Yen-Chi LIU （劉晏齊）
J.S.D., University of California, Berkeley
Assistant Professor, School of Law, Fu Jen Catholic University
Edmund Ryden SJ（雷敦龢）
PhD. SOAS, London University
Associate Professor, Department of Law, Fu Jen Catholic University
Ching P SHIH（史慶璞）
S.J.D., Golden Gate University, School of Law
Associate Professor, Chung-Yuan Christian University
Andy Y. SUN（孫遠釗）
J.D., University of Maryland School of Law Visiting Professor, Peking University Law School Executive Director, Asia Pacific Legal Institute
Chen-En SUNG（宋承恩）
DPhil Candidate, St Catherine's College, University of Oxford
Robert Huai-Ching TSAI (蔡懷卿)
J.D., University of California, Davis
Assistant Professor (retired), Hsuan Chuang University, Department of Law
分類
其他詳細資訊
- 英文題名：Republic of China (Taiwan) constitutional court reporter interpretations Nos.717-759 (2014-2017)
- 適用對象：成人(學術性)
- 關鍵詞：憲法、人權保障
- 附件：無附件
- 頁/張/片數：800
授權資訊
- 著作財產權管理機關或擁有者：司法院
- 取得授權資訊：聯絡處室：大法官書記處
姓名：王美慧
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