| 摘要: | 本文旨在深究，全國性公投案之不同程序所生的公投訴訟，提案人之領銜人和其 他有公民投票權人的訴權應當如何規定與適用。我國憲法將創制、複決權置於基本權 利之列至為明確，釋字第 645 號解釋也肯定其權利性質，且公投之行使既是基本權 利，同時具有機關權限的屬性，是謂參與權的雙重性質;然而，公投法主要設置提案 人之領銜人的保護規範，始終未賦予其他有公民投票權人挑戰公投提案的訴權，實則 憲法第 17 條、公政公約第 25 條以及第 25 號一般性意見保障個人投票自由，基於憲法 第 16 條有權利即有救濟之原則，其他有公民投票權人亦享有請求法院救濟之主觀權 利。實務見解混淆防禦權和政治參與權分別於公投前訴訟的作用，本文說明可能性理 論係從防禦權的概念發展而來，注重個人權利保護而避免群眾訴訟，而參與權著重公 民總意志之表達，只要有公民投票權即具備訴訟合法性要件。
於公投提案是否合憲審查階段，提案人之領銜人享有訴權並無疑問，其提案是否 涉及修憲程序，非屬公投法適用範圍，係訴訟有無理由之問題;對其他有公民投票權 人而言，縱憲法第 17 條之意旨未涵蓋拒絕違憲公投之「實質異議權」，如防禦權有受 公投侵害之可能時當具備防禦權的訴權。於公投主文與理由審查階段，提案人之領銜 人主張形式審查原則恐有重大誤解，依最高行政法院見解，中選會有做成合憲行政處 分，審查公投提案的義務;其他有公民投票權人針對不符合客觀性、中立性、簡明清 楚的公投主文，抑或具有誤導性、不實陳述的公投理由書，具有程序異議權無疑。於 公投連署查對階段，連署書可否主動補件涉及公投程序規定，公投法既未為規範，自 無從依憲法第 17 條擴張解釋。於公民投票前階段，中選會無權審查政府機關意見書， 且政府機關負有協助公民取得公投案相關資訊的憲法義務，倘未清楚說明公投案通過 或不通過的法律效果，其他有公民投票權人得請求司法救濟。;The study aims to probe how the litigation power of the leading proposer and any person having the right of referendum in any referendum litigation derived from various procedures for national referendums shall be defined and applied. The Constitution of the Republic of China (Taiwan) defines the rights of initiative and referendum as a basic right, which was recognized by the Interpretation No. 645. Besides, the exercise of a referendum is not only a basic right but also the authority vested in a government agency, i.e., the participation right in dual nature. Notwithstanding, the requirements about protection of the leading proposer set forth in the Referendum Act have never granted the other persons having the right of referendum the litigation power to challenge a proposal of referendum. As a matter of fact, Article 17 of the Constitution of the Republic of China (Taiwan), Article 25 of the International Covenant on Civil and Political Rights of the General comment No. 25 protect individuals’ freedom to vote. In consideration of Article 16 of the Constitution, which upholds that where there are rights, there are remedies, the other persons having the right of referendum should also reserve the subjective right to petition with courts for remedies. The practical opinions confuse how the right of defense and right of political participation work in any pre-referendum litigation. This Study tries to explain that the possibility theory is developed from the concept about the right of defense, which focuses on the protection of personal rights and avoid any class action, while the right of political participation focuses on the expression of the citizens’ general will. In fact, in order to judge whether the litigation power exists or not, it is necessary to distinguish the “formation of procedure” or “participating as an individual.” In the latter case, any person simply with the right of referendum will be considered satisfying the legality requirements about litigation.
II
During the review on whether any referendum complies with the Constitution, there is no doubt that the leading proposer have the litigation power. The question of whether the proposal involves a constitutional amendment procedure, and does not fall within the scope of the Referendum Act, is classified as the issue that if the initiation of an action is meritorious or not. For the other persons with the right of referendum, even if Article 17 of the Constitution doesn’t intend to cover the “substantive right to object” to deny the referendum against the Constitution, when their rights of defense are infringed upon by any referendum, they shall be held entitled to the litigation power for defense. At the stage of review on the subject and reasons of the referendum, the leading proposer might have a major understanding about the claim against the formality examination principles, as according to the interpretation of the Supreme Administrative Court, the Central Election Commission has the duty to render a constitutional administrative decision when reviewing referendum proposals. Undoubtedly, the other persons having the right of referendum shall have the right of objection to the procedure, in the context of the subject of referendum against the principles of objectivity, neutrality, conciseness and clarity, or the written statement of reasons for the referendum which is misleading or misrepresented. Whether the proposer may supplement petition letters voluntarily at the stage of signatures and check for the referendum involves the formation of the referendum procedure. Notwithstanding, since the Referendum Act does not provide relevant regulations, it is impossible to expand the interpretation based on Article 17 of the Constitution. Before the referendum, the Central Election Commission has no right to review the relevant government agency’s written opinion. Besides, the relevant government agency is obliged to access the information related to the referendum under the Constitution. If the government agency fails to explain the legal effects if the referendum is passed or rejected, the other persons having the right of referendum may seek judicial remedies. |
