The Study on the Temporal Effect of Judicial Review ：Focusing on the Prospective Overruling

There are three models to deal with the temporal effects of unconstitutional law, namely “retrospective”,“immediate” and “prospective” overruling. Among these three models, prospective overruling permits unconstitutional law to remain their existence in a certain or uncertain period, which can seriously harm the consistency of the legal order and the protection of fundamental rights. In the absence of a strong need to protect the legal certainty, whether the application of prospective overruling can be justified is really questionable. However, the appearance of prospective overruling in Taiwan’s judicial review outcomes has become more common in recent years, and thus worthy of research. First, this thesis reviews the relevant provisions in the Constitution and the Constitutional Interpretation Procedure Act, and discusses the admissibility of the prospective overruling. In the next chapter, it analyzes the pros and cons of the prospective overruling with various theories, and infers that prospective overruling should be strictly adopted. This thesis subsequently analyzes the interpretations of the Judicial Yuan (J.Y.) that adopted the prospective overruling model, and indicates the characteristics of prospective overruling characteristic and problems on its application. Moreover, for further reflections, this thesis researches with a comparative approach to take a look at how prospective overruling is coped with in other countries. This thesis argues that prospective overruling can only be used under exceptional circumstances, and the proportionality test should be applied simultaneously. Based on the previous analysis of the J.Y. interpretations and comparative study, this thesis explains by examining specific cases in the levels of “legitimate objective”, “appropriate measures” and “the effects of the measures proportional for the objective” in the effort of enhancing the predictability and stability of the temporal effects in judicial reviews. Finally, this thesis reviews the draft amendments of the Constitutional Interpretation Procedure Act concerning the temporal effects of unconstitutional law. It further points out that were these amendments adopted, certain negative consequences might occur, such as “dura lex, sed lex” (the phenomenon of unjust law being applied), their contradiction to the principle of equality, and the potential challenges for judges to suspend the trial proceedings and file a petition to the Constitutional Court for interpretation of the Constitution. Hence, this thesis provides some solutions as to resolve these matters.