To Active Legislation of the Method of Judicial Review Announcement──From the Perspectives of Legislation Discretion

  • 林 冠宇

Student thesis: Doctoral Thesis


Although according to Article 171 paragraph 1 of the Constitution laws that are in conflict with the Constitutional shall be null and void the Grand Justices as the interpreter of the Constitution seem to have different declaration model for different types of law Base on this fact the purpose of this study is to examine how many types of model of establishing a judicial review could urge the legislators to modify the law with an active attitude That is when the Grand Justices declare the law is unconstitutional whether the difference between the declaration model of ”unconstitutional but invalid later” and of ”unconstitutional and invalid immediately” would influence the legislators to be more or less active on making amending or abolishing the law Comparatively when the law is constitutional and legislators are ordered to review and amend the law at the same time so-called "The Warning Decisions" whether the legislators would be less active for the way above However the declaration model that can prompt the legislators to take an active attitude toward legislation often comes with the Grand Justices to also actively involved in law-making Thus given that the Grand Justices actively instruct the way of legislation with constitutional justification still they should be more careful and should be concerned about the power of explaining constitution for not infringing the legislative power Although the Grand Justices have the constitutional legitimacy to instruct the legislator they also have to be careful not to abuse its authority and not to cause the misgiving of infringing the legislative power Therefore the limitation of the power of judicial review declaration must be found in order to avoid blurring the line between the power of explaining constitution and the legislative power and prevent further controversy in the power of explaining constitution replacing the legislative power All the above mentioned topics including legislative discretion and what kind of declaration model can urge the legislators to modify the law are all deserve further research Therefore the legislative discretion theory is chosen to examine judicial review declaration and is used to find the boundary and baseline when applying all kinds of declaration On the one hand this theory can elucidate the topic of this paper: “what kinds of declaration of judicial review for active legislation” On the other hand this theory can examine the appropriateness of the declaration that discusses how the Grand Justices to instruct the legislation However to move away from the theory and to make this theory more applicable I analyze past judicial review to see whether the theory is sufficient for making up the deficiency For example the relevance between the standard of judicial review the declaration model and the basic rights I anticipate that with the presentation of statistical information and relevant tabulation the declaration model which could put the legislators actively developing a law could be found out To conclude the research findings whether the content of the law involved in the core of fundamental rights can influence both the boundary of legislative discretion and the determination of judicial review standard In addition if the content of the law is highly related with the core of fundamental rights it is possible that the Grand Justices will adapt transitory provisions to replace the unconstitutional law in order to prevent legislators from failing to follow the spirit of declaration However through evidence-based researching I find out that ”unconstitutional but invalid later” is the most effective declaration model which can prompt the legislators to take an active attitude toward legislation Key words:Legislative Inaction Legislative Laziness Active Legislation Legislative Discretion Freedom of Legislation the Standard of Judicial Review the Declaration Model Quasi-Legislative Evidence-based Research Interpretation No 748
Date of Award2019
Original languageEnglish
SupervisorWei-In Tsai (Supervisor)

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