Ⅰ重要名詞解釋 中華民國憲法 ··························································· 3 △形式意義的憲法與實質意義的憲法 ································· 3 △規範性憲法、名目性憲法、語戲性憲法 ························· 3 △憲政主義 ·········································································· 3 △憲法變遷 ·········································································· 4 △制憲機關 ·········································································· 5 △制憲權源 ·········································································· 5 △制憲依據 ·········································································· 5 △制憲目的 ·········································································· 5 △制憲效力 ·········································································· 5 △憲法前言之性質 ······························································· 5 △憲法前言之效力 ······························································· 6 –1–
第一章
總綱 ··························································· 6
△憲法的基本價值秩序 ······················································· 7 △修憲界限理論 ··································································· 8 △國民主權原則 ································································· 10 △國籍的取得 ····································································· 10 △領土變更程序 ································································· 10 △政治問題的意義 ····························································· 11
第二章
人民之權利義務 ······································· 11
△基本權之概念 ································································· 11 △基本權利第三人效力 ····················································· 12 △基本權競合 ····································································· 13 △基本權衝突 ····································································· 13 △人性尊嚴 ········································································ 14 △自由權分類 ····································································· 14 △憲法第 7 條之規定為「例示性規定」 ··························· 16 △憲法第 7 條的平等觀為等者等之，不等者不等之→ 實質平等 ········································································ 16 △平等權（原則）的內涵（釋 649、682、694、701、 719、722、728） ··························································· 16 △平等權（原則）的判斷標準 ·········································· 16 △人身自由的意義 ····························································· 18 △正當法律程序（釋 384、436、567、588、690） ········· 18 △「司法機關」之意涵 ····················································· 18 △「警察機關」的意涵（釋 588） ···································· 19 △「法院」的意涵：係職司審判（裁判）之機關 （釋 392） ····································································· 20 –2–
△居住及遷徙自由 ····························································· 21 △保障對象 ········································································ 21 △表現自由 ········································································ 22 △言論自由 ········································································ 22 △言論自由價值 ································································· 22 △講學自由 ········································································ 23 △大學自治 ········································································ 24 △新聞自由 ········································································ 24 △接近使用傳播媒體權（釋 364） ···································· 24 △象徵性言論 ····································································· 25 △明顯而立即的危險 ························································· 25 △事前審查的禁止 ····························································· 25 △雙軌理論與雙階理論 ······················································ 26 △秘密通訊自由 ································································· 28 △秘密通訊自由保障內涵（釋 631、756） ······················ 28 △宗教信仰自由（釋 490、573） ······································ 28 △政教分離原則 ································································· 29 △集會結社自由 ································································· 30 △許可制與報備制 ····························································· 30 △工作權 ············································································ 31 △工作權三階段審查 ························································· 31 △財產權 ············································································ 31 △損失補償 ········································································ 32 △請願權 ············································································ 32 △訴願權 ············································································ 32 △訴訟權 ············································································ 33 –3–
△法定法官原則 ································································· 33 △參政權 ············································································ 34 △創制、複決權 ································································· 34 △應考試權 ········································································ 35 △服公職權 ········································································ 35 △特別權力關係 ································································· 35 △租稅法律主義 ································································· 36 △受教權 ············································································ 37 △人格權（釋 486、664） ················································· 37 △姓名權（釋 399） ·························································· 37 △名譽權（釋 656） ·························································· 37 △隱私權（釋 585、603、631、689） ······························ 37 △子女獲知其血統之權利（釋 587） ································ 38 △契約自由、私法自治（釋 576、728） ·························· 38 △性行為自由權（釋 554） ··············································· 38 △結婚自由（釋 362、748） ············································· 38 △收養子女之自由（釋 712） ··········································· 38 △一般行為自由（釋 535、689、699、749） ··················· 38 △免於身心傷害之身體權（釋 689） ································ 39 △受國民教育以外之權（釋 626） ···································· 39 △法律保留 ········································································ 39 △比例原則 ········································································ 39
第三章
國民大會 ················································· 40
△言論免責權 ····································································· 42 △不受逮捕權 ····································································· 43
–4–
第四章
總統 ························································· 43
△權力分立原則 ································································· 43 △機關忠誠原則 ································································· 44 △總統的地位（釋 627） ··················································· 44 △軍政、軍令一元化 ························································· 44 △副署 ················································································ 45 △副署之限縮（憲法增修條文§2Ⅱ） ····························· 45 △緊急處分權 ····································································· 46 △刑事豁免權（釋 527） ··················································· 47 △國家機密特權（釋 527） ··············································· 48
第五章
行政 ························································· 48
△覆議 ················································································ 50 △預算 ················································································ 50
第六章
立法 ························································· 51
△個案法律禁止原則 ························································· 51 △國會自律原則（釋 342） ··············································· 52 △國會調查權 ····································································· 52 △言論免責權 ····································································· 55 △不受逮捕權 ····································································· 56
第七章
司法 ························································· 56
△司法院定位三階段變革 ·················································· 57 △司法行政權及規則制定權 ·············································· 57 △分散型與集中型之司法違憲審查制度 ··························· 58 △具體違憲審查制與抽象違憲審查制 ······························· 58 △政治問題不審查原則 ······················································ 59 –5–
△大法官解釋的拘束力 ····················································· 60 △審判獨立（釋 530） ······················································ 61 △大法官為憲法上的法官（釋 601） ································ 61
第八章
考試 ························································· 63
第九章
監察 ························································· 64
△糾正案 ············································································ 65
中央與地方之權限 ·································· 67
第十章 第十一章
地方制度 ············································· 70
△住民自治 ········································································ 70 △團體自治 ········································································ 70 △地方自治 ········································································ 70
第一節
省 ····························································· 70
第二節
縣 ····························································· 72
罷免
創制
複決 ·················· 73
第十二章
選舉
第十三章
基本國策 ············································· 74
△基本國策 ········································································ 74
第一節
國防 ·························································· 75
△軍隊國家化 ····································································· 75
第二節
外交 ·························································· 76
第三節
國民經濟 ·················································· 76
第四節
社會安全 ·················································· 78
第五節
教育文化 ·················································· 79 –6–
第六節
邊疆地區 ··················································· 81
第十四章
憲法之施行及修改 ······························· 81
△法治國原則 ····································································· 81 △法律優位原則 ································································· 82 △修憲界限 ········································································ 83
中華民國憲法增修條文 ·········································· 84 △憲法修正案之程序 ························································· 84 △緊急命令（釋 543）······················································· 86 △覆議核可權 ····································································· 87 △被動解散立法院之權 ······················································ 87 △不信任案得否於為其他特定事項召開之立法院臨時 會提出？（釋 735） ······················································ 88 △不信任案提出 ································································· 89 △單一選區兩票制（單一選區制與比例代表制混合之 兩票制） ········································································ 90
司法院大法官審理案件法 ······································ 96 第一章
總則 ························································· 96
第二章
解釋案件之審理 ······································ 96
△中央或地方機關聲請釋憲 ·············································· 97 △人民、法人或政黨聲請釋憲 ·········································· 99 △三分之一以上立法委員聲請釋憲 ································· 101 △法院（官）聲請釋憲 ···················································· 102 △地方自治團體聲請釋憲 ················································ 104 △層轉意涵 ······································································ 106 –7–
第三章
政黨違憲解散案件之審理 ····················· 108
第四章
附則 ························································ 112
行政程序法 ···························································· 113 第一章
總則 ························································ 113
第一節
法例 ··························································· 113
△行政的內涵 ··································································· 113 △行政程序 ······································································ 115 △內部單位 ······································································ 115 △行政機關 ······································································ 115 △獨立機關 ······································································ 116 △非組織意義行政機關之行政行為 ································· 117 △組織意義行政機關之行政行為或統治行為 ·················· 117 △依法行政原則 ······························································· 119 △法律保留原則 ······························································· 120 △一般法律原則 ······························································· 120 △公益原則 ······································································ 121 △明確性原則 ··································································· 121 △平等原則 ······································································ 123 △行政自我拘束原則 ······················································· 123 △比例原則 ······································································ 124 △誠實信用原則 ······························································· 125 △信賴保護原則 ······························································· 125 △信賴保護原則之方式 ··················································· 125 △行政裁量 ······································································ 126 △不確定法律概念 ··························································· 127 –8–
第二節
管轄 ··························································· 128
△管轄權 ·········································································· 128 △管轄法定原則與管轄恆定原則 ···································· 129 △管轄衝突 ······································································ 130 △法規意涵 ······································································ 132 △委任 ·············································································· 132 △委託 ·············································································· 132 △委辦 ·············································································· 133 △未刊登政府公報之法律效力 ········································ 133 △行政輔助人（行政助手） ············································ 133 △委託私人行使公權力 ···················································· 134 △喪失管轄權與委任或委託 ············································ 135 △職務協助 ······································································ 136
第三節
當事人 ······················································· 136
△當事人 ·········································································· 136 △當事人能力 ··································································· 137 △行為能力 ······································································ 138 △參加人 ·········································································· 138 △代理 ·············································································· 139 △輔佐人 ·········································································· 141
第四節
迴避 ··························································· 141
△迴避 ·············································································· 141 △釋明 ·············································································· 142
第五節
程序之開始 ··············································· 143
△職權決定原則 ······························································· 143 –9–
第六節
調查事實及證據 ········································ 143
△職權調查原則 ······························································· 143 △鑑定、鑑定人 ······························································· 144 △勘驗 ·············································································· 145 △自由心證原則 ······························································· 145
第七節
資訊公開 ··················································· 146
△資訊公開 ······································································ 146
第八節
期日與期間 ··············································· 147
△期日、期間 ··································································· 147 △回復原狀 ······································································ 148
第九節
費用 ··························································· 149
第十節
聽證程序 ··················································· 150
△聽證程序 ······································································ 150 △缺席聽證 ······································································ 151 △預備聽證 ······································································ 152
第十一節
送達 ······················································· 155
△送達的態樣 ··································································· 155 △送達 ·············································································· 155
第二章
行政處分 ················································ 162
△行政作用 ······································································ 162
第一節
行政處分之成立 ········································ 162
△行政處分 ······································································ 162 △具體事件 ······································································ 163 –10–
△對外直接發生法律效果 ················································ 163 △單方性 ·········································································· 163 △公物 ·············································································· 164 △一般處分 ······································································ 164 △附款 ·············································································· 165 △期限 ·············································································· 165 △條件 ·············································································· 166 △負擔 ·············································································· 166 △廢止權之保留 ······························································· 166 △負擔之保留 ··································································· 167 △不當聯結禁止原則 ······················································· 167 △要式處分 ······································································ 168 △不要式處分 ··································································· 168 △教示制度 ······································································ 169 △未為附記教示條款而致救濟期間延展部分（行程§ 98、訴願§92） ··························································· 170
第二節
陳述意見及聽證 ········································ 172
△陳述意見 ······································································ 172 △「限制或剝奪」的意涵 ················································ 172 △聽證與公聽會 ······························································· 174
第三節
行政處分之效力 ········································ 175
△形式存續力 ··································································· 176 △實質存續力 ··································································· 176 △行政處分之效力 ··························································· 176 △行政處分之無效 ··························································· 177 –11–
△瑕疵行政處分之效果及程度 ········································ 177 △行政處分之撤銷 ··························································· 178 △行政處分之廢止 ··························································· 178 △違法行政處分之轉換 ··················································· 180 △違法行政處分於法定救濟期間經過後的意義 ·············· 181 △行政處分之廢棄，概念上可以分為「撤銷」與「廢 止」 ·············································································· 184 △行政程序之重新進行 ··················································· 186 △「重複處分」與「第二次裁決」之區分 ····················· 186 △法定救濟期間經過後的意涵 ········································ 187 △「發現新事實新證據」之時點 ···································· 187
第三章
行政契約 ················································ 189
△行政契約 ······································································ 189 △公法契約與私法契約之判斷：契約標的兼採目的說 ·· 189
第四章
法規命令及行政規則 ····························· 193
△行政命令 ······································································ 193 △授權命令合法性 ··························································· 194 △職權命令 ······································································ 194 △職權命令合法性 ··························································· 194 △法規命令未依行政程序法第 157 條第 3 項規定，刊 登政府公報或新聞紙者，不生效力 ····························· 196 △解釋性行政規則未依行政程序法第 160 條第 2 項登 載於政府公報，並不影響其效力 ································· 197
第五章
行政計畫 ················································ 198
第六章
行政指導 ················································ 199 –12–
第七章
陳情 ······················································· 199
第八章
附則 ······················································· 201
△準備行為 ······································································ 201 △程序行為 ······································································ 202
行政罰法 ······························································· 203 第一章
法例 ······················································· 203
△立法理由 ······································································ 203 △處罰法定原則 ······························································· 204 △地方自治處罰範圍 ······················································· 205 △從新原則 ······································································ 205 △從輕原則 ······································································ 206 △最初裁處時 ··································································· 206 △法規變更 ······································································ 206
第二章
責任 ······················································· 207
△故意 ·············································································· 207 △過失 ·············································································· 207 △推定過失 ······································································ 207 △不純正不作為 ······························································· 209 △依法有防止之義務 ······················································· 209 △依上級命令之職務行為 ················································ 210
第三章
共同違法及併同處罰 ····························· 211
△共同違法行為 ······························································· 211 △行為責任與狀態責任 ···················································· 211 △法人實在說 ··································································· 212 –13–
△兩罰制 ·········································································· 212 △轉嫁制 ·········································································· 213 △便宜原則 ······································································ 213
第四章
裁處之審酌加減及擴張 ························· 213
△沒入 ·············································································· 215
第五章
單一行為及數行為之處罰 ····················· 216
△一事不二罰原則 ··························································· 216 △一行為 ·········································································· 216 △數行為 ·········································································· 217 △綜合主義 ······································································ 218 △刑罰優先原則 ······························································· 219
第六章
時效 ························································ 219
第七章
管轄機關 ················································ 220
第八章
裁處程序 ················································ 221
△扣留 ·············································································· 223
第九章
附則 ························································ 225
△法律不溯及既往原則 ··················································· 225
行政執行法 ···························································· 227 第一章
總則 ························································ 227
△行政執行法的定位 ······················································· 227 △公法上金錢給付義務 ··················································· 227 △「以適當之方法為之，不得逾達成執行目的之必要 限度」之意涵 ······························································· 228 –14–
△原處分機關的意涵 ······················································· 228 △該管行政機關的意涵 ···················································· 228 △其他休息日的意涵 ······················································· 229 △夜間的意涵 ··································································· 229 △聲明異議應以書面 ······················································· 230 △直接上級主管機關的意涵 ············································ 231 △聲明異議程序之性質 ···················································· 231
第二章
公法上金錢給付義務之執行 ················· 231
第三章
行為或不行為義務之執行 ····················· 238
第四章
即時強制 ················································ 240
△即時強制 ······································································ 241 △損失補償 ······································································ 243 △特別損失補償之請求 ···················································· 243
第五章
附則 ······················································· 243
訴願法 ··································································· 245 第一章
總則 ······················································· 245
第一節
訴願事件 ··················································· 245
△訴願制度 ······································································ 245 △撤銷訴願 ······································································ 245 △訴願要件 ······································································ 245 △課予義務訴願 ······························································· 246 △擬制行政處分 ······························································· 247
第二節
管轄 ··························································· 247
△訴願管轄 ······································································ 248 –15–
△多階段行政處分之訴願管轄 ········································ 251
第三節
期日及期間 ··············································· 251
第四節
訴願人 ······················································· 252
△訴願之當事人能力 ······················································· 252 △訴願權能之判斷 ··························································· 253 △訴願參加 ······································································ 255
第五節
送達 ··························································· 258
第六節
訴願卷宗 ··················································· 259
第二章
訴願審議委員會 ····································· 260
第三章
訴願程序 ················································ 261
第一節
訴願之提起 ··············································· 261
△層轉前置原則 ······························································· 262 △訴願撤回之效力 ··························································· 263 △不服行政處分之表示 ··················································· 263
第二節
訴願審議 ··················································· 264
△言詞辯論之非必要性 ··················································· 264 △職權調查原則 ······························································· 265
第三節
訴願決定 ··················································· 268
△不受理決定 ··································································· 269 △地方自治事項的審查 ··················································· 269 △信賴保護原則 ······························································· 271 △不利益變更禁止原則 ··················································· 271 △情況決定 ······································································ 272 –16–
△教示制度 ······································································ 275 △不停止執行原則 ··························································· 276 △停止執行之判斷 ··························································· 276 △構成要件效力（拘束力） ············································ 277 △存續力 ·········································································· 277
第四章
再審程序 ················································ 278
△確定力（形式確定力） ················································ 278
第五章
附則 ······················································· 279
行政訴訟法 ··························································· 280 第一編
總則 ······················································· 280
第一章
行政訴訟事件 ········································ 280
△公法上之爭議 ······························································· 280 △公法和私法區別之標準 ················································ 281 △無名訴訟 ······································································ 281 △訴訟類型之選擇 ··························································· 282 △訴訟類型正確性之判斷 ················································ 283 △單獨撤銷附款之訴 ······················································· 284 △撤銷訴訟 ······································································ 284 △保護規範理論 ······························································· 285 △訴願人以外之利害關係人 ············································ 285 △撤銷訴訟之特別實體判決要件 ···································· 287 △課予義務之訴 ······························································· 287 △程序重新再開與行政救濟 ············································ 288 △拒為處分課予義務訴訟之特別實體判決要件 ·············· 289 △怠為處分課予義務訴訟之特別實體判決要件 ·············· 289 –17–
△確認之訴 ······································································ 290 △確認訴訟之特別實體判決要件 ···································· 291 △續行確認訴訟之特別實體判決要件 ····························· 291 △合併請求損害賠償之性質 ············································ 291 △一般給付之訴 ······························································· 292 △預防性不作為之訴 ······················································· 292 △一般結果除去請求權 ··················································· 293 △一般給付訴訟之種類及特別實體判決要件 ·················· 293 △先決問題 ······································································ 294 △移審制之設計與流程 ··················································· 295
第二章
行政法院 ················································ 297
第一節
管轄 ··························································· 297
△管轄分配 ······································································ 297
第二節
法官之迴避 ··············································· 299
第三章
當事人 ···················································· 300
第一節
當事人能力及訴訟能力 ···························· 300
△行政訴訟當事人能力 ··················································· 300
第二節
選定當事人 ··············································· 302
第三節
共同訴訟 ··················································· 303
△普通共同訴訟 ······························································· 303 △必要共同訴訟 ······························································· 304 △共同訴訟之要件及效力 ················································ 304
第四節
訴訟參加 ··················································· 305
△訴訟參加 ······································································ 305 –18–
△訴訟參加之態樣及效力 ················································ 306 △獨立參加 ······································································ 307 △輔助參加 ······································································ 307
第五節
訴訟代理人及輔佐人 ································ 308
第四章
訴訟程序 ················································ 311
第一節
當事人書狀 ··············································· 311
第二節
送達 ··························································· 312
第三節
期日及期間 ··············································· 317
第四節
訴訟卷宗 ··················································· 319
第五節
訴訟費用 ··················································· 320
第二編
第一審程序 ············································ 323
第一章
高等行政法院通常訴訟程序 ················· 323
第一節
起訴 ··························································· 323
△權利保護必要 ······························································· 325 △行政訴訟上反訴 ··························································· 328
第二節
停止執行 ··················································· 329
第三節
言詞辯論 ··················································· 330
△處分（權）主義之意義 ················································ 332 △職權探知（調查）主義之意義 ···································· 332
第四節
證據 ··························································· 335
第五節
訴訟程序之停止 ········································ 345
△訴訟程序之停止 ··························································· 345 △裁定停止 ······································································ 345 –19–
△當然停止 ······································································ 346
第六節
裁判 ··························································· 348
△情況判決 ······································································ 351
第七節
和解 ··························································· 357
△和解之要件及效力 ······················································· 357 △和解制度缺點 ······························································· 357
第二章
地方法院行政訴訟庭簡易訴訟程序 ······ 359
第三章
交通裁決事件訴訟程序 ························· 363
第四章
收容聲請事件程序 ································· 366
第三編
上訴審程序 ············································ 368
△行政訴訟之上訴 ··························································· 368
第四編
抗告程序 ················································ 375
第五編
再審程序 ················································ 377
第六編
重新審理 ················································ 381
第七編
保全程序 ················································ 383
△假扣押 ·········································································· 383 △假處分 ·········································································· 384
第八編
強制執行 ················································ 385
△行政訴訟執行名義 ······················································· 385
第九編
附則 ························································ 387
國家賠償法 ···························································· 388 △「第一次權利保護」與「第二次權利保護」 ·············· 388 –20–
△國家賠償責任之法律性質 ············································ 390 △保護規範理論 ······························································· 392 △裁量收縮理論 ······························································· 393 △公務員違法行為之國家賠償責任 ································· 393 △特別犧牲理論 ······························································· 396 △公共設施瑕疵之國家賠償責任 ···································· 397 △協議先行主義 ······························································· 399 △第一次權利保護與第二次權利保護 ····························· 400
公務人員任用法 ···················································· 402 △公務人員 ······································································ 402 △忠誠查核 ······································································ 403 △機要人員 ······································································ 405 △機要人員所任職務之範圍 ············································ 406 △指名商調 ······································································ 414 △留職停薪條件 ······························································· 418 △政務人員 ······································································ 422
公務人員保障法 ···················································· 424 第一章
總則 ······················································· 424
第二章
實體保障 ················································ 426
第三章
復審程序 ················································ 431
第四章
申訴及再申訴程序 ································ 445
第五章
調處程序 ················································ 448
第六章
執行 ······················································· 449
第七章
再審議 ···················································· 451 –21–
第八章
附則 ························································ 453
公務人員考績法 ···················································· 454 公務員懲戒法 ························································ 462 第一章
通則 ························································ 462
△特別權力關係 ······························································· 462 △情節重大 ······································································ 464
第二章
懲戒處分 ················································ 466
第三章
審判程序 ················································ 470
第四章
再審 ························································ 482
第五章
執行 ························································ 485
第六章
附則 ························································ 486
公務員服務法 ························································ 488 △服從義務 ······································································ 488 △非營利事業兼職之禁止 ················································ 491
–22–
Ⅱ基本概念說明表 中華民國憲法 ······················································· 497 01 基本權利之功能體系 ··················································· 497 02 依法行政原則下之法規審查密度 ································ 498 03 三重審查標準 ······························································ 499 04 比例原則與審查密度 ··················································· 500 05 制憲和修憲的對照 ······················································ 503 06 中央政府體制－總統制、內閣制、半總統制（雙首 長制）之特徵 ······························································· 504 07 我國中央政府體制的變革 ··········································· 505
行政程序法 ··························································· 508 01 公權力行政與私經濟行政 ··········································· 508 02「行政裁量」與「不確定法律概念」適用之對照 ······ 510 03「委任」、「委託」與「委辦」之對照 ························· 511 04 負擔與條件、期限之比較 ··········································· 511 05 行政處分轉換與補正之對照 ······································· 512 06 行政處分廢止與撤銷之對照 ······································· 514 07 撤銷違法授益處分之要件與法律效果 ························ 514 08 行政處分不同程度之瑕疵與其規範效果 ···················· 516 09 行政契約與須申請之行政處分之比較 ························ 517 10「行政處分」與「行政命令」之對照 ························· 518 –23–
11「行政程序」與「行政訴訟」之區別 ························· 518 12 行政命令之概念比較 ··················································· 519 13 行政程序規定「公告」一覽表 ··································· 525 14 行政程序法各條文中「法規」之涵義彙整表 ············· 527 15 行政處分分類 ······························································ 558 16 雙階理論 ····································································· 560
行政罰法 ······························································· 563 行政秩序罰和行政執行罰概念辨別 ································· 563
行政執行法 ···························································· 564 01 各類行政執行方式之比較 ··········································· 564 02 直接強制與即時強制之比較分析 ································ 565
訴願法 ··································································· 566 01 訴願和聲明異議之對照 ··············································· 566 02 陳情、請願、訴願三者之比較 ··································· 567 03 訴願和行政訴訟之比較 ··············································· 567 04 訴願法之各種訴願期間比較 ······································· 568 05 有權限轉移之情況之訴願管轄機關分析 ···················· 569
行政訴訟法 ···························································· 570 01 實體判決要件（訴訟要件）之審查 ···························· 570 02 各種訴訟之起訴期間 ··················································· 574 03 行政訴訟和民事訴訟、刑事訴訟之區別 ···················· 575 04 公法和私法的區別 ······················································ 576 05 異議和抗告區別 ·························································· 576 –24–
06 再審與重新審理區別 ··················································· 576 07 一般給付訴訟與課予義務訴訟之比較 ························ 577 08 行政訴訟法上之訴訟參加 ··········································· 578 09 言詞辯論之進行 ·························································· 585 10 言詞辯論之準備 ·························································· 586
國家賠償法 ··························································· 587 行政上損害賠償與損失補償概念之辨別 ························· 587
公務員法 ······························································· 588 01 公務員範圍對照表 ······················································ 588 02「復審」與「申訴」之區別 ········································ 589 03 懲戒與懲處比較 ·························································· 590 04 我國考銓行政的爭訟程序一覽表 ································ 592
–25–
重要名詞&概念說明
Ⅰ重要名詞解釋 中華民國憲法 中華民國憲法增修條文 司法院大法官審理案件法 行政程序法 行政罰法 行政執行法 訴願法 行政訴訟法 國家賠償法 公務人員任用法 公務人員保障法 公務人員考績法 公務員懲戒法 公務員服務法
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Ⅰ重要名詞解釋
前
言
中華民國憲法 ■名詞解釋 △形式意義的憲法與實質意義的憲法 形式意義的憲法：係指以憲法典的形式、特別制訂 而公布的成文法典，此種意義的憲法，在我國目前 就是指「中華民國憲法」與憲法增修條文。 實質意義的憲法：注重實際內容，不問形式為成文 或不成文，也不問其所用名稱為何，只要是其內容 規定國家基本組織及國家活動之基本原則的法律， 均屬於實質意義的憲法。 〔林子儀等四人合著，憲法權力分立，初版，頁 4～5。〕
△規範性憲法、名目性憲法、語戲性憲法 規範性憲法：具實效性之憲法；憲政規範與憲政現 實間完全一致。 名目性（名義性）憲法：因憲法文化匱乏，致實施 荒腔走板，使憲法只為名目上之存在；憲政規範與 憲政現實間不完全一致，憲法並未真正受到遵行或 只有部分條文發生效力。 語戲性（巧語性、詭譎性）憲法：為欺騙、安撫人 民，獲取他國之承認而制定憲法，但現實上並未實 施；憲政規範與憲政現實間完全悖離。 △憲政主義 憲政主義可以說是主張以憲法建構一個有限政府，以 保障人民權利的一種憲政理念。依其觀點，憲法應規 定民主原則、法治原則、與權力分立制衡原則，並應 具體地以民主程序－定期選舉及代議民主制度－組成 政府、以權力分立制衡原則分配政府權力與設立國家
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Ⅰ重要名詞解釋－中華民國憲法
組織、以法治原則規範國家統治權的行使、與建立一 套可以將憲法規範加以具體落實的違憲審查制度，而 這也是目前一般民主國家所致力追求及實踐的憲政制 度。 〔林子儀等四人合著，憲法權力分立，初版，頁 11～12。〕
△憲法變遷 憲法變遷基本上是在描述一種現象，也就是憲法條 文本身原義不變更的情形下，逐步地賦予與原始字 義不同的意義內涵。經由憲法變遷，在不變更憲法 文字下，改變了憲法規範的意義，因此憲法變遷可 能是憲法解釋的問題，也是憲政現實與憲法規範彼 此緊張關係所形成的問題。 基於不使憲法規範力空洞化，喪失在憲政現實的適 應性，不得不承認憲法變遷存在的事實，正如同必 須承認法律乃是制訂當時時空背景所形成之歷史事 實，但憲法變遷仍有其界限，其字義變遷僅能在憲 法規範之意義、目的及精神範圍內，而非恣意擴充 其內容。 釋字第 392 號解釋理由書謂，憲法並非靜止之概念， 其乃孕育於一持續更新之國家成長過程中，依據抽 象憲法條文對於現所存在之狀況而為法的抉擇，當 不能排除時代演進而隨之有所變遷之適用上問題。 從歷史上探知憲法規範性的意義固有其必要；但憲 法規定本身之作用及其所負之使命，則不能不從整 體法秩序中為價值之判斷，並藉此為一符合此項價 值秩序之決定。 〔陳慈陽，憲法學，二版，頁 140～141。〕
前言 中華民國國民大會受全體國民之付託，依據孫中山先生
前
言
創立中華民國之遺教，為鞏固國權、保障民權、奠定社 會安寧、增進人民福利，制定本憲法，頒行全國，永矢 咸遵。
■名詞解釋 △制憲機關 國民大會。 △制憲權源 受全體國民之付託。 △制憲依據 孫中山先生的遺教，即五權憲法、權能區分、全民政 治及均權制度等。 △制憲目的 鞏固國權、保障民權、奠定社會安寧、增進人民福利。 △制憲效力 頒行全國，永矢咸遵。 △憲法前言之性質 世界各國由於制憲背景以及政治局勢的不同，因此會 在憲法前言內表現不同的制憲意志。大抵而言憲法前 言的內容不外乎以下四種性質： 建國原則：亦即在憲法前言中強調該憲法的制定來 源，藉以說明制憲權力的歸屬，同時在前言內標明 國號、主權……等內容及範圍，以彰顯前言的建國 原則。 歷史敘述：憲法前言內倘若涉及制定憲法的原由或 是修憲、立憲的時空背景及歷程，則有強調或訴諸 制憲的正當性的作用在內。 方針條款：於憲法前言內宣示憲法施行的方針條 款，係施行憲法後對於憲法未來的期許，同時也是
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Ⅰ重要名詞解釋－中華民國憲法
彰顯者制憲者對於未來的期待。 道德宗教的宣示：在憲法內涉及宗教道德的思想， 乃制憲者利用「價值訴求」對其制憲行為取得正當 性。 〔陳新民，憲法學釋論，修正五版，頁 48～49。〕
△憲法前言之效力 關於憲法前言的效力，學界有以下的看法： 有學界認為憲法前言係置於憲法條文之前，所以憲 法前言本身並不屬於憲法本文內容，因此本身不具 法律上的效力；另外針對憲法前言的內容，其性質 大多屬於非法律的用語，且同時充滿著抽象宣示的 內容，所以不應具有法律上的效力。 亦有學界認為，憲法前言亦應屬於憲法內容的一部 份。此種具有規範性質的前言內容，產生拘束國家 公權力的作用可能性有： 作為釋憲的依據，由釋憲者對於憲法前言來作為 補充憲法本文不足的釋憲內容。 作為修憲界限的依據，憲法前言的規範效力同時 拘束修憲者對於憲法內容更動的底線和修改內容 的合憲標準。 作為直接的法規範，甚至於法院可以直接引用憲 法前言的規範來作為審查基準。 〔陳新民，憲法學釋論，修正五版，頁 51～54。〕
第一章
總綱
第 1 條（國體） 中華民國基於三民主義，為民有、民治、民享之民主共 和國。 ■名詞解釋
第一章
總綱
△憲法的基本價值秩序 民主國原則 憲法明文規定 共和國原則 法治國原則 憲法無明文規定 社會國原則 民主國係由人民自我統治的一種國家形 式，除了人民自行使國家權力外，國家機 關在成立及行使國家權力時，必須基於人 民之意志或至少必須能夠溯及至人民之意 志，因此民主國係一種人民自我決定及自 我統治的國家形式。 民主國原則 「民主正當性」即表示國家權力的表現必 須是出自於人民的意志，亦藉此而使作為 國家權力主體的人民與行使國家權力的機 關間建立了必要的關連，且因此使國家權 力源自於人民的機制獲得確保。 民主國家原則的具體內涵包括：國民主權 原則、定期改選原則、多數決原則等。 共和國主要涉及國家的體制，而國家則由 國家元首來代表，因此國家元首的產生方 式，決定了該國的國體。 共和國拒絕任何形式的獨裁，共和國之國 家屬人民所有，此不僅代表權利亦表示義 共和國原則 務之承擔，國民對於公共利益負有責任， 統治及責任乃是一體之兩面的，因而共和 國不再僅是一項國家外在形式的表徵，而 轉化為確定國家權力擁有的內在體制決 定。 所謂法治國即是「依法而治」 ，國家權力之 行使僅能基於憲法與形式及實質合憲制定 法治國原則 之法律。是以，一個國家的象徵乃在於權 力與統治，而規定法治國原則之目的即在 限制權力與統治。
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Ⅰ重要名詞解釋－中華民國憲法
法治國依其不同的發展階段可概略分為形 式法治國及實質法治國： 形式法治國（Rule by law）：此一時期著 重於法的形式要件、程序、決定之權限及 依據，並以立法為最高位階，其「憲法」 規範僅是政治上的宣示，並無法的拘束 力，易造成「惡法亦法」 。 實質法治國（Rule of law）：認為立法內 容應受憲法拘束，人民的基本權利應透過 具有拘束力的憲法來加以保障，維護人民 對於「法」的信賴。此一時期憲法具最高 效力，且建置違憲審查制度以確保之。 法治國家原則既要求國家行為的方式或內 容的正當性，為達此一要求，其內涵包括： 權力分立原則、依法行政原則、比例原則、 法安定性原則等。 社會國家原則的內涵，係一種社會安全及福 利的保障與社會主義的實現。前者即國家必 須保障人民享有一合於人性尊嚴之生存條 件，以減輕或避免人民經濟困頓。為達成此 目的，國家應採取諸如保障人民最低生活條 件、生存照顧、社會保險制度、社會補償制 社會國原則 度、社會安全或提供重要之公共基礎設施等 措施。後者即國家必須努力調和因不同之權 利分配、財富不均、教育高低所生之對立與 矛盾，建立事實上的機會平等，扶助弱勢並 講求社會階層的實質平等，以達社會衡平反 社會正義的實現。 〔蕭文生，國家法－國家組織篇，初版，頁 31～153；吳信華， 憲法釋論，二版，頁 58～146。〕
△修憲界限理論 憲法的修改，除了符合修憲程序外，實質的修憲內 容是否有界限，有不同見解：
第一章
總綱
修憲無界限說： 其主要理由在於即使憲法明訂修憲有界限之規 定，其界限限制亦無實效性。此說主張憲法的任 何條文都可以修改。 修憲有界限說： 強調憲法具有根本規範性，並非所有的憲法條款 均具有相同之價值。憲法之修改若超過這個界 限，無異廢止舊憲法而制定新憲法，乃是革命或 政變，而非憲法之修改。 自由民主憲政秩序作為修法界線：釋字第 499、721 號解釋。 憲法條文中具有本質之重要性而為規範秩序存立 之基礎者，如聽任修改條文予以變更，則憲法整 體規範秩序將形同破毀，該修改之條文即失其應 有之正當性。憲法條文中，諸如：第 1 條民主共 和國原則、第 2 條國民主權原則、第二章保障人 民權利、以及有關權力分立與制衡之原則，具有 本質之重要性，亦為憲法整體基本原則之所在。 基於前述規定所形成之自由民主憲政秩序，乃現 行憲法賴以存立之基礎，凡憲法設置之機關均有 遵守之義務。憲法之修改，除其程序有明顯重大 瑕疵或內容涉及自由民主憲政秩序之違反者外， 自應予尊重。 申言之，憲法之修改如未違反前述民主共和國原 則、國民主權原則，或未涉人民基本權核心內涵 之變動，或不涉權力分立與制衡原則之違反，即 未違反自由民主憲政秩序。 〔程明修，憲法基礎理論與國家組織，初版，頁 87～89。〕
第 2 條（主權在民）
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Ⅰ重要名詞解釋－中華民國憲法
中華民國之主權，屬於國民全體。
■名詞解釋 △國民主權原則 釋字第 499 號解釋認為，基於國民主權原則（憲§2）， 國民主權必須經由國民意見表達及意思形成之溝通程 序予以確保。易言之，國民主權之行使，表現於憲政 制度及其運作之際，應公開透明以滿足理性溝通之條 件，方能賦予憲政國家之正當性基礎。而修憲乃最直 接體現國民主權之行為。 第 3 條（國民） 具有中華民國國籍者，為中華民國國民。 ■名詞解釋 △國籍的取得 國籍的取得可分為下列二種方式，「生來取得」與「傳 來取得」，前者即因出生而取得國籍，就此尚有「屬人 主義」（血統主義，以一定之血統關係為國籍取得之標 準）與「屬地主義」（出生地主義，以出生地之國別而 為取得國籍之標準）。我國國籍法第 2 條規定，以「屬 人主義」為原則，「屬地主義」為例外。另「歸化」則 屬傳來取得（嗣後取得）。 第 4 條（國土） 中華民國領土，依其固有之疆域，非經國民大會之決 議，不得變更之。 【編按：本條受憲法增修條文第 1 條第 1 項以及第 4 條第 5 項凍結】
■名詞解釋 △領土變更程序 中華民國領土，依其固有疆域，非經全體立法委員四 分之一之提議，全體立法委員四分之三之出席，及出