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題 名 | 德國與臺灣宗教自由基本權與宗教立法之比較=A Comparative Study on the Fundamental Rights to Religious Freedom and the State Legislations on Religion in Germany and in Taiwan |
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作 者 | 張永明; | 書刊名 | 思與言 |
卷 期 | 39:3 2001.09[民90.09] |
頁 次 | 頁103-144 |
專 輯 | 「宗教法與臺灣社會變遷」專輯 |
分類號 | 202.3、202.3 |
關鍵詞 | 宗教自由; 信教自由; 良心自由; 宗教立法; 宗教團體; 宗教結社自由; 政教合一; 政教分離; 拒服兵役; 國家之中立義務; 容忍之原則; Freedom to religion; Freedom to belief; Conscientious freedom; Legislation on religion; Religious groups; Freedom to religious association; Non-separation of church and state; Separation of church and state; Anti-drafting; State neutrality (duty); The principle of tolerance; |
語 文 | 中文(Chinese) |
中文摘要 | 德國與我國之實況顯示,宗教發展之歷史背景左右該國宗教團體之屬性、在俗世間之法律地位,以及國家對之所為之宗教立法,而國民個人宗教自由之保障,亦因此而有不同之發展。德國因歷經政教合一與宗教迫害之洗禮,教會在政教分離後,以堅實之組織形態繼續存在,並享有特定法律地位之保障,而個人之宗教向由權亦在基本法反應過去歷史之前提下,於憲法之規範層次即有廣泛與完整之保障,且以曘重要基本權之形態出現,在釋憲機關忠於憲法規定之解釋下,不虞保障不足;相較之下,我國之宗教團體因無政教合一與政教嚴重衝突之歷史因素,加上教義偏向溫和,宗教團體之組向來鬆散,而在國家對宗教事務採低密度之立法下,宗教團體似乎享有自由,但在法律地位不明確下,竑而無法獲得應有之保障,現狀下我國個人宗教自由與宗教團體之權利與義務,因憲法之規極度精簡,而法律規範等同闕如,僅憑釋憲機關以擴張解釋方式因,但因「法官造法」有違民主法治國家權力分立原理之虞,不同經常為之,因此,若欲確保我國憲法上保障之基本權品質,期震能與法先進之德國相仿,則國家之宗教立法有其必要性與迫切性,而當制憲與修憲機關有所不為時,立法機關之立法即具有補充憲法規不足之作用。 |
英文摘要 | The religious practices in Germany and in Taiwan indicate that the historical background of religious development determines the characters of religious groups, their legal status as a secular institution in the nation's public life, and the nature of state legislation imposed on them; consequently, the protection for the individual freedom to religion in each of the two countries has evolved in a different way. The church in Germany, due to its tormenting experiences of the non-separation of state-and-church and religious persecutions, has continued to exist after being separated from the state, with its persistent organizational form, and with the guarantee of the specific legal status granted by the state law. The individual right to religious freedom is hence comprehensively (broadly and fully) protected on the level of the constitution, on the premises that the Basic Law (Grundgesetz) should reflect the history. These protections are in the form of fundamental rights, thus sustaining no possibility of under-protection, presumed that the authority responsible for the constitutional interpretation keeps loyal to the Constitution. In contrast to it, religious groups in Taiwan are lax with respect to their organizational form, because in their historical experiences they lack a concern of the separation of religious groups and state. The conflict between religious groups and state has seldom become a crucial issue, and the religious doctrine are relatively moderate. In addition, the state legislation on religious affairs are scarce. Due to these factors religious groups appear to have freedom to a certain extent, but they are rather in need of the kind of guarantee they deserve owing to the indefiniteness of their legal status. Under the status quo, the issues about the individual freedom to religion, and the rights and duties of religious group are dealt with simply by the concerned authority using expansive interpretation, which, practically, often means "judicial law-making; for the constitutional provisions are over-simplistic, while the relevant legislation amounts to nothing. "Judicial law-making," however, is not a proper means under the Rule of Law for its being at variance with the basic democratic principle of the separation of powers. If our constitutionally guaranteed fundamental rights are to be maintained in a high quality, so as to make it somehow conform to the advanced practice of the basic rights protection in Germany, the state legislation on religion is necessary and urgent. It can thus serve to complement the inadequacy of the constitutional provisions wherever the authorities for constitutionenactment and the constitution-amendment are inactive. |
本系統中英文摘要資訊取自各篇刊載內容。