大法官解釋 釋字第791號 |
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| 公佈日期：2020/05/29 |
| 解釋爭點 |
| 1、刑法第239條規定是否符合憲法第22條保障性自主權之意旨？本院釋字第554號解釋應否變更？ 2、刑事訴訟法第239條但書規定是否符合憲法第7條保障平等權之意旨？ |
| [27] 美國聯邦最高法院（The Supreme Court of the United States of America）對立法機關就有關社會價值觀（social beliefs）、社會狀況（social conditions）及倫理觀（morality）所為之判斷，亦認法院應予尊重。例如在Kahn v. Shevin、Joseph E. Seagram & Sons, Inc. v. Hostetter 及Ferguson v. Skrupa案中，該院即均表示：「法院不能取代經由選舉產生，負責審議法律之立法機關就社會價值觀所為之判斷。」（“We have returned to the original constitutional proposition that the courts do not substitute their social and economic beliefs for the judgment of legislative bodies, which are elected to pass laws.” Kahn v. Shevin, 416 U.S. 351, footnote 10 (1974); “Under the system of government created by our Constitution, it is up to legislatures, not courts, to decide on the wisdom and utility of legislation. There was a time when the Due Process Clause was used by this Court to strike down laws which were thought unreasonable, that is, unwise or incompatible with some particular economic or social philosophy. The doctrine that due process authorizes courts to hold laws unconstitutional when they believe the legislature has acted unwisely has long since been discarded. We have returned to the original constitutional proposition that courts do not substitute their social and economic beliefs for the judgment of legislative bodies, who are elected to pass laws.” Joseph E. Seagram & Sons, Inc. v. Hostetter, 384 U.S. 35, 47 (1966); ‘The doctrine that prevailed in Lochner, Coppage, Adkins, Burns, and like cases—that due process authorizes courts to hold laws unconstitutional when they believe the legislature has acted unwisely—has long since been discarded. We have returned to the original constitutional proposition that courts do not substitute their social and economic beliefs for the judgment of legislative bodies, who are elected to pass laws.’ Ferguson v. Skrupa, 372 U.S. 726, 730 (1963).）又如在Griswold v. Connecticut一案中，該院亦表示：「美國聯邦最高法院不能以超立法機關自居，就有關經濟問題、商業事務及社會狀況，決定立法是否明智、符合需要及妥當性。」（“We do not sit as a super-legislature to determine the wisdom, need, and propriety of laws that touch economic problems, business affairs, or social conditions.” 381 U.S. 479, 482 (1965).）另如在Joseph E. Seagram & Sons, Inc. v. Hostetter及Ferguson v. Skrupa案中，該法院亦表示：「法院不能以自己之觀點，就倫理觀、合理性及實用性，決定法律對特定事項是否課以過重之負擔而違反正當法律程序。」（it is not the province of courts to draw on their own views as to the morality, legitimacy, and usefulness of a particular business in order to decide whether a statute bears too heavily upon that business and by so doing violates due process.) 384 U.S. 35, 47 (1966); It is the province of courts to draw on their own views as to the morality, legitimacy, and usefulness of a particular business in order to decide whether a statute bears too heavily upon that business and by so doing violates due process. 372 U.S. 726, 728-29 (1963).） |
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