書籍介紹
英譯司法院大法官解釋：收錄自民國107年1月至108年7月大法官作成之釋字第760號至第780號解釋英譯。Interpretations Nos. 760～780（2018.01～2019.07）of the Constitutional Court, Republic of China (Taiwan)。
目次
Contents
Interpretation NumberPage
No. 7601
Does Article 11, Paragraph 2 of the Police Personnel Management Act con- stitute disparate impact discrimination in the qualification for assignments of regular trainees who have passed the Grade Three Special Examination for Police Personnel?
No. 76123
1.Does applying mutatis mutandis the litigation procedure rules for recusal of judges to the recusal of Technical Examination Officer at the Intellectual Property Court violate the principle of statutory reservation and the principle of clarity of law?
2.Would the right to litigation protected under the Constitution be harmed if the law does not disqualify judges at the Intellectual Property Court who have heard the civil or criminal intellectual property cases from hearing the administrative litigation concerning the same intellectual property?
No. 76245
Is the first part of Article 33, Paragraph 2 of the Criminal Procedure Code, which prevents a defendant from gaining timely access to all dossiers and exhibits in the case, unconstitutional?
No. 76359
Is Article 219, Paragraph 1 of the Land Act, which does not require the competent authority to notify periodically the original landowner of the subsequent use of the expropriated land and, as a consequence, renders the
original landowner unable to obtain sufficient information to exercise the right of redemption, inconsistent with the due process in administrative pro- cedure required by the Constitution and unconstitutional for violation of Ar- ticle 15 of the Constitution which guarantees the people’s right to property?
No. 76473
Insofar as Article 8, Paragraph 3, First Sentence of the Statute of Privatiza- tion of State Enterprises applies to those reemployed who had previously held public servant status, does settling the payment based on their years of services violate their right to hold public office and the right to equality?
No. 76597
Does Article 52, Paragraph 1, Subparagraph 8 of the Enforcement Rules of the Land Expropriation Act, as promulgated by the Ministry of the Interior on April 17, 2002, violate the Gesetzesvorbehalt principle?
No. 766115
Is Article 18-1 of the National Pension Act, amended on June 29, 2011, which stipulates that the survivor’s pension is paid monthly from the month of application and meeting the requirements, in violation of Article 15 of the Constitution to protect property rights and right to existence?
No. 767129
Is Article 13, Subparagraph 9 of the Drug Injury Relief Act, which excludes patients having the common and foreseeable adverse drug reactions from drug injury relief, in violation of the principle of clarity and definiteness of law (Rechtsbestimmtheitsprinzip), or the principle of proportionality?
No. 768143
1.Does Article 1 of the Medical Personnel Management Act violate the principle of clarity and definiteness of law (Rechtsbestimmtheitsprinzip)?
2.Do Article 1 of the Medical Personnel Management Act as well as the text of Article 28, Paragraph 1, Subparagraph 2 and Paragraph 2 of
the Civil Service Employment Act, which restrict a physician of both the Republic of China (Taiwan) and foreign nationalities from serving as the public medical care institute physician employed with the civil servant status and ought to relieve the duty of those who already have been employed, violate the intent of Article 18 of the Constitution on the protection of people’s right of holding public offices?
3.Do Article 20, Paragraph 1 of the Nationality Act and the Medical Personnel Management Act, which provide no exception to remove the limitation on a person of both the Republic of China (Taiwan) and foreign nationalities to serve as the public medical care institute physician employed with the civil servant status, violate the intent of Article 7 of the Constitution on the protection of people’s right to equality?
No. 769165
Do the provisions in Articles 44 and 46 of the Local Government Act re- garding the use of open ballot system for the election of county/city coun- cil’s speaker and deputy speaker comply with the spirit and intent of Article 129 of the Constitution and Article 9, Paragraph 1 of the Additional Articles of the Constitution?
No. 770179
Are cash-out mergers permitted under Article 4, Subparagraph 3 of the Business Mergers and Acquisitions Act, and the exemption of the avoid- ance rule under the Company Act by Article 18, Paragraph 5 of the Busi- ness Mergers and Acquisitions Act as promulgated on February 6, 2002, inconsistent with the objective of Article 15 of the Constitution to protect people’s property right?
No. 771199
1.The Supreme Court Civil Precedent 40-Tai-Shang-730 (1951) and J.Y. Interpretation Yuan-Chieh-Tzu (Y.C.T.) No. 3997 (1948) declared that a
real heir’s right to inheritance would be lost if the statute of limitations imposed on the claim to recover the inheritance entitlement to the intestate share has expired. Consequently, the putative heir acquires the right to inheritance. Are the Precedent and Interpretation incongruent with the Constitution?
2.Should a judge, as they review a case, abide by the J.Y. Interpretations indexed as Interpretations Yuan-Tzu (Y.T.) and those indexed as Interpretations Yuan-Chieh-Tzu (Y.C.T.), with regard to the Interpretation of the law that is to be cited in the decision?
No. 772231
Are disputes arising from applications for the purchase of non-public use real estate under Article 52-2 of the National Property Act subject to the ju- risdiction of ordinary courts or that of administrative courts?
No. 773243
Does the ordinary court or the administrative court have jurisdiction over the dispute involving the preferential purchase right exercised by lawful oc- cupants of land or constructional improvement as unregistered inheritance?
No. 774255
Can individuals whose properties are not within the scope of the proposed modification of an urban planning project seek judicial remedies, if the modification may cause harm to his or her rights or legal interests?
No. 775265
1.Does Article 47, Paragraph 1 of the Criminal Code regarding increase in punishment for recidivism violate the constitutional principle of double jeopardy? Does the same Paragraph violate the constitutional principle of proportionality in sentencing, because it increases the principal punishment in all cases?
2.Do Article 48, First Sentence of the Criminal Code and Article 477,
Paragraph 1 of the Code of Criminal Procedure regarding adjustment in punishment for recidivism violate the constitutional principle of non bis in idem?
No. 776293
Is indefinite map-overlay control over the adjacent land resulting from the combined application of two Letters, namely the Ministry of the Interior Letter Nei-Ying-727291 of 1989 regarding the set-up of a parking area in the adjacent vacant land with map-overlay control and applying for change in the use of a building, and the Ministry of the Interior Letter Nei- Ying-907380 of 1991, which provides that an expiration date shall not be attached to the letter of consent for land use required by Article 30 of the Building Act, with its scope in practice being expanded to include the ap- plication for a “usage alteration license,” contrary to the purport of property right protection as guaranteed by Article 15 of the Constitution?
No. 777317
Do the elements of Article 185-4 of the Criminal Code violate the void-for- vagueness doctrine? Does its sentence violate the principle of proportional- ity?
No. 778339
1.Is restriction of physicians’ privilege to dispense drugs under Article 102, Paragraph 2 of the Pharmaceutical Affairs Act inconsistent with the objective of Article 15 of the Constitution to protect people’s right to work?
2.Does Article 50 of the Pharmaceutical Affairs Act Enforcement Rules and the Executive Yuan, Department of Health, Food and Drug Administration Letter FDA Yào-1000017608, April 12, 2011’s explanations of “urgent need of medical treatment services” of Article 102, Paragraph 2 of the Pharmaceutical Affairs Act exceed the scope of authorization by the enabling statute, impose restrictions on the right not
otherwise found in law and violate the Gesetzesvorbehalt principle in Article 23?
No. 779359
1.Does Article 39, Paragraph 2 of the Land Tax Act, exempting the tax on the price appreciation of land violate Article 7 of the Constitution protecting the right to equal protection? Does the Ministry of Finance Letter Tai-Tsai-Shui-Letter-0900457200 of November 13, 2001, not exempting the non-urban land designated as road and used for transportation purposes from the tax on the price appreciation of land violate Article 7 of the Constitution protecting the right to equal protection?
2.The Executive Yuan, Council of Agriculture Letter Nung-Chi-900102896 of February 2, 2001 states that, as the public roads under the Public Roads Act are not land for agriculture, Article 37, Paragraph 1 of the Agricultural Development Act does not apply to exempt such roads. Does the letter violate Article 19 of the Constitution that requires taxation by statutes and Article 23 of the Constitution that requires that persons’ rights and obligations be provided for by statutes?
No. 780383
Are the penalties imposed by the Road Traffic Management and Penalty Act on car drivers for forcibly crossing a railroad crossing unconstitutional?
Index403
Relative Laws or Regulations403
Keywords411
編／著／譯者簡介
Directory of the Translators
(in alphabetical order)
Chao-Tien CHANG（張兆恬）
S.J.D., University of Pennsylvania
Associate Professor, Graduate Institute of National Development, National Taiwan 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
Chia-Chi CHEN（陳佳琦）
LL.M., New York University School of Law Attorney at Law
Chung-Lin CHEN（陳仲嶙）
S.J.D., University of Wisconsin-Madison
Professor, Institute of Law for Science and Technology, National Tsing Hua University
Hui-Wen CHEN（陳慧雯）
LL.M., Harvard Law School
Research Assistant, University of Warwick
Wan-Tsui CHIANG（江浣翠）
S.J.D., Indiana University Maurer School of Law
Associate Professor, National Cheng Kung University Department of Law
IVDirectory of the Translators
Eleanor Y. Y. CHIN（金玉瑩）
Ph.D., Chinese Culture University, School of Law Doctoral Program LL.M., Soochow University School of Law
Managing Partner, Chien Yeh Law Office
Mong-Hwa CHIN（金孟華）
S.J.D., Duke University
Professor, School of Law, National Yang Ming Chiao Tung University
Chi CHUNG（鍾騏）
S.J.D., Harvard Law School
Associate 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
Associate Professor, Graduate Institute of National Development, National Tai- wan University
Hsiao-Wei KUAN（官曉薇）
S.J.D., University of Pennsylvania, U.S.A.
Professor, Department of Law, National Taipei University
Ming-Sung KUO（郭銘松）
J.S.D., Yale Law School
Reader in Law, University of Warwick School of Law School
Albert LIAO（廖士權） LL.M., Harvard Law School Attorney at Law
Directory of the Translators V
Jennifer LIN（林秋琴）
LL.M., Harvard Law School (1982)
Bachelor of Law, National Taiwan University (1979) Senior Partner of Tsar & Tsai Law Firm
Yen-Chi LIU（劉晏齊）
J.S.D., University of California, Berkeley
Associate Professor, Soochow University School of Law
Kai-Ping SU（蘇凱平）
J.S.D., University of California, Berkeley School of Law Associate Professor, College of Law, National Taiwan University
Ya-Wen YANG（楊雅雯）
Ph.D., SOAS, University of London
Assistant Research Professor, Institutum Iurisprudentiae, Academia Sinica
Yueh-Ping YANG（楊岳平）
S.J.D., Harvard Law School
Associate Professor, College of Law, National Taiwan University
分類
其他詳細資訊
- 英文題名：Republic of China (Taiwan) constitutional court reporter interpretations Nos.760-780 (2018.01-2019.07)
- 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：415
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