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大法官解釋表頭

(釋字第 150 號 )      友善列印PRINT  
Interpretation
J.Y.
Interpretation
NO.150 
Date 1977/9/16
Issue Is the Executive Yuan's decree suspending further filling of vacancies left by the term of the Legislative Yuan constitutional?
Holding   Paragraph 6 of the Temporary Provisions Effective During the Period of National Mobilization for Suppression of the Communist Rebellion does not alter the term of elected central representatives under the Constitution. The Executive Yuan's decree not to fill vacancies in the First Legislative Yuan does not contradict the Constitution.
Reasoning   The petitioner in this case argued, among other things, that Article 65 of the Constitution states, "The term for members of the Legislative Yuan shall be three years," yet Paragraph 6, Subparagraph 2, of the Temporary Provisions Effective During the Period of National Mobilization for Suppression of the Communist Rebellion, promulgated on March 23, 1972, provides that the terms of elected central representatives under the Constitution were to extend across the board until such time that "the recaptured areas in Mainland China conduct the election of central representatives, respectively," and that all laws and regulations which contradict this provision are declared invalid. Petitioners are stand-by candidates for the First Legislative Yuan. Their petitions to fill the vacancies in the Legislative Yuan were denied by the Executive Yuan, the Grievances Review Board and the Grievances Review Appeal Board based on a not-to-fill decree promulgated by the Executive Yuan. Petitioners thus filed the present petition [for constitutional interpretation] on the ground that their rights protected under the Constitution have been infringed upon.

  Article 65 of the Constitution specifically provides that the term of a member of the Legislative Yuan is three years. By reference to Articles 29 and 45 of the Legislator Election and Recall Act, it is clear that when vacancies are created, they are to be filled by stand-by candidates in due course and order to serve out the remainder of that term. As a result, once the term of the First Legislative Yuan expired on May 7, 1951, there were no vacancies to fill. Due to national emergencies, although in reality it was impossible to conduct elections after the terms of members of the First Legislative Yuan's term had expired, in accordance with this Yuan’s Interpretation No. 31 and to uphold the five-branches constitutional framework, members were allowed to continue to carry out their duties until the Second Legislative Yuan was elected and convened. Based upon this Interpretation, only those who were already members at the time the term of the First Legislative Yuan expired could remain in office.

  Paragraph 6, Subparagraph 2, of the Temporary Provisions Effective During the Period of National Mobilization for Suppression of the Communist Rebellion, as promulgated on March 23, 1972, provides that members of the First Legislative Yuan [should continue to] carry out their duties in accordance with the law. This is the same legal rule as the above-indicated Interpretation. With regard to the wording “elected central (national) representatives shall be elected by the general population of the whole nation,” as provided in the same Section, as far as members of the Legislative Yuan are concerned, it refers to those elected in 1948, those who have already filled the vacancies in accordance with the law as of May 7, 1951, and those newly-elected members in accordance with Paragraph 5 of the Temporary Provisions Effective During the Period of National Mobilization for Suppression of the Communist Rebellion, as promulgated on March 22, 1966. The wording "the recaptured areas in Mainland China are to conduct the election of central representatives, respectively," contained in the same Section and cited above, is similar to the last Paragraph of Article 65 of the Constitution, which states, "The election of Legislators shall be completed within three months prior to the expiration of each term." They are all provisions designed for the period of election. Yet in accordance with Paragraph 6, "notwithstanding Articles 26, 64 and 91 of the Constitution, the President shall promulgate rules to maintain the central representative body." It is abundantly clear that these provisions were not created to alter the term of the first central representatives. Based on the above illustration, the Executive Yuan's Tai 40 (Nei) No. 2337 decree stipulating that the term of the First Legislative Yuan expired as of May 7, 1951, and that all vacancies created thereafter shall not be filled does not contradict the Constitution.

Translated and edited by Professor Andy Y. Sun.
Opinion Chinese only
 

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