A critical analysis of the reviewability of precedent in grand justice conference of R. O. C based on Dworkin's theory of adjudiction.

• Main Authors: Shu, Wen-Hsuan, 蘇文玄
• Other Authors: Chen, Chi-Shing
• Format: Others
• Language: zh-TW
• Published: 2009
• Online Access: http://ndltd.ncl.edu.tw/handle/kvsy53

碩士 === 國立政治大學 === 法學院碩士在職專班 === 97 === A Critical Analysis of the Reviewability of Precedent in Grand Justice Conference of R.O.C. Based on Dworkin’s Theory of Adjudiction In Accordance with Article 78 of the constituiton of the R.O.C., The Judicial Yuan shall interpret the Constitution and shall have the power to unify the interpretation of laws and orders. The Constitution Interpretation Procedure Act is hereby enacted. The grounds on which the petitions for interpretation of the Constitution may be made as follow : promulgated by when an individual, a legal entity, or a political party, whose constitutional right was infringed upon and remedies provided by law for such infringement had been exhausted, has questions on the constitutionality of the statute or regulation relied thereupon by the court of last resort in its final judgment. The thesis aims to examine the Reviewability of Precedent in Grand Justice Conference of R.O.C. in light of Dworkin’s Theory of Adjudiction.This thesis first describes the facts, issues and opions of Precedent in Grand Justice Conference of R.O.C., and after introducing a series of debates on Dworkin’s Theory of Adjudiction. In Taking Rights Seriously, Dworkin found a basis for judges through asserting that there exists principle. When a hard case occurs, there is no definite way of determining pre-existing law and this is when judges engage in law interpretation and the argument of principle. A more complete and detailed explanation in Law’s Empire. Dworkin developed a distinctive legal theory based on the core idea of integrity. The idea that we must treat like cases alike. Law as integrity assumes, that Judges must make their decisions on grounds of principle,not policy. They must deploy arguments why the parties actually had the legal rights and duties they enforce at the time the parties acted or at some other pertinent time in the past. Dworkin separates judicial decision making into two stages: fit and justification. During the fit stage, all prior judicial precedent chains that are above a specific threshold are identified. In the justification stage, the moral conception which best coheres with “the community’s moral traditions” is selected as the basis for a decision. To resolve conflicts over competing conceptions of morality, Dworkin believes judges adopt arguments of principle that weigh the value of each competing conception before making their final reasoned decision. The finaly, applying Dworkin’s judicial decision making stages(fit and justification)to argue the Precedent in Grand Justice Conference of R.O.C.