2003-08-012024-05-18https://scholars.lib.ntu.edu.tw/handle/123456789/713149摘要：自1990年代初期，第三波民主化浪潮以及其所相應帶動的憲法變遷，已經超過十年。在這十多年間，憲法法院的積極定位與功能強化，憲法解釋的政治性格與活絡程度，可以說是這一波民主轉型與憲法變遷脈絡中，所表現出最重要的制度特徵。對於各國積極設立或強化既有憲法法院，仰賴憲法解釋以達成人權保障、深化法治，甚至解決民主轉型與憲法變遷所產生的各種憲法問題與政治爭議，國際或國內的憲法學界皆已累積相當研究成果，並歸納出其成因。 憲法法院以及憲法解釋在最近十年的高度活絡化，可由三個面向來分析。首先，在「民主正當性」的面向，因為轉型初期政治部門的民主機制尚未確立，憲法法院本於既有憲法基礎所作的憲法解釋，可以提供政治轉型與憲法變遷的正當性基礎。其次，從「憲法變遷」的脈絡來觀察，由於第三波民主化表現協商特色，此種「協商式民主轉型」無可避免地導致「漸進式憲法變遷」，使得憲法在經歷多次、幅度不等的修改之後，產生高度的規範落差與制度扞格，而需要憲法法院透過解釋來發揮規範協調與制度統整的功能。最後，從「人權保障」的角度來說，這一波轉型政治與憲法變遷的動向，偏於政府體制的重新調整，忽略人權與法治的「憲法化」，憲法法<br> Abstract: It has been more than a decade since the third wave of democratization and constitutional changes it brought embarked in the early 1990s. In the remarkable “decade plus”, one of the most distinguished features has been the empowerment of constitutional courts and the politicization of constitutional interpretations. This unparallel phenomenon, in which courts are empowered, constitutional interpretations rendered, to protect human rights, to promote the rule of law, and even more importantly, to resolve contested political issues generated in the context of democratic transitions and constitutional changes, has been intensively studied in Taiwan as well as throughout the world. The scholarly explanations for the empowerment of constitutional courts in the last decade have been three-fold. The first explanation is offered in the perspective of democratic legitimacy. As political branches often lack democratic legitimacy as a result of electoral insufficiencies, constitutional courts whose interpretations are ground upon the existing constitution may render legitimacy for political change. Secondly, the third wave of democratization has been regarded as negotiated transitions, which inevitably create small-scale, incremental constitutional reforms prone to constitutional inconsistencies and institutional deadlocks. Judicial interpretations are thus demanded. Third, the focus of constitutional change has been mostly on government systems, thus giving an institutional opportunity for constitutional courts to redress the constitutionalization of human rights. That being said, however, after more than a decade, factors that empowered constitutional courts or facilitated their functions have been changed and no longer valid. New democracies in East Europe, South America, East Asia, including Taiwan, have undergone more than once comprehensive elections, some of which resulted in the transfer of government powers from the incumbent to the opposition. It is fair to say that political institutions have held stable democratic legitimacy, some of which are relatively high, in these new democracies. The problems of constitutional inconsistencies and institutional deadlocks have been resolved in some nations such as Poland and South Africa by making new constitutions; in others by the obtainment of long-time political consensuses. Formal legalization of rights and policies reinforce this trend. More critically, constitutional court judges whose tenure often lasts eight to twelve years now find themselves faced with a new crisis of re-appointment or re-composition. Thus, in a post-hegemonic era, what kind of constitutional courts do we need? A persistently progressive one or a self-restraint one? With a forward-looking focus, in what ways may we give a new life to constitutional courts in the post-hegemonic, as well as global, era? Not surprisingly, this issue has now been hotly debated in the international community of constitutional scholars. T憲法法院憲法解釋憲法對話憲法變遷第三波民主化協商式民主轉型漸進式憲法變遷後威權時代全球化Constitutional CourtConstitutional InterpretationConstitutional DialogueConstitutional ChangeThird Wave DemocratizationNegotiated DemocratizationIncremental Constitutional ReformPost-HegemonyGlobalization