On the Grand Justices’ Interpretations over Explicit Authorization Requirement
Date Issued
2009
Date
2009
Author(s)
Yang, Hui-Ju
Abstract
Since being elucidated in J. Y. (Judicial Yuan) Interpretation No. 313, the “principle of explicit authorization” has been among the common grounds for declaration of constitutional violation in some other J. Y. Interpretations in recent years. Despite not being constitutionally delineated, this principle seems, in both scholastic research and theoretical principle, getting mature and comprehensive with denotation formed from related interpretations made by the Grand Justice and with standards varied according to different objects being reviewed. However, the interpretations made by the Grand Justice showed inconsistency in standards applied in the review of the principle of explicit authorization. Such inconsistency has caused perplexities about whether the principle of explicit authorization is “explicit.” or this, this article intends to embark on further exploration and analysis of J.Y. Interpretations on the principle of explicit authorization from a practical standpoint by first systematically sorting out the results on related J. Y. Interpretations, followed by identifying the objects to be regulated by the principle of explicit authorization. On such objects, the opinions of the interpretations about the principle of explicit authorization are verified for possible stratification in terms standards for protection and review of basic rights. Further discussion is made on the impact of the J. Y. Interpretations on the principle of explicit authorization on related judicial, legislative, and administrative practices, in review on constitutional violations and constitutional structure, as well as in the Grand Justice’s review standards on the principle of explicit authorization. On review standards for the principle of explicit authorization that lack clarity or consistency, recommendations are provided for references from the angle of separation of powers and optimal function, to establish a set of definite operation principles to be followed for facilitating effectiveness of the principle of explicit authorization in order to achieve the purpose of protecting and maintaining people’s rights.
Subjects
principle of explicit authorization
J. Y. Interpretation
Review on constitutional violation
constitutional structure
stratification, review standards
optimal function
SDGs
Type
thesis
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