我國男性大法官的性／別正義觀研究－司法院釋字第554、617、666號解釋的文本觀察

Abstract

In the legal field, gender/sexuality has always been full of symbolic significance of morality, order and good conventions. People in the judicial system are so accustomed to follow their predecessors that they have never dared to change the definition and interpretation of gender/sexuality. However, as Critical Legal Studies and feminist jurisprudence have become trendy in the legal world of the United States since 1970, people are paying more and more attention to the law enforcement and justice by building up experience in judicial proceedings. At the same period of time, multiculturalism has been getting more and more critical on the patriarchal legal system in terms of its gender/sexuality issues, thus gradually exposing the gender/sexuality issues for public debates.The honorable justices are appointed according to Article 79 of the Constitution of the Republic of China, without any prejudice to rule out the recommendation and selection of female grand justices. However, among the fifteen grand justices who have been added to the list since 2003, there are only two female honorable justices. As a result, all the interpretation of laws and orders has been made under a resolution mechanism dominated by the male judges. The author of this article has intentionally selected Interpretation Letters #554, #617, and #666 for this study, because they are concerned with sex discrimination and have drawn a lot of attention in the recent years. Each of the Interpretation Letters is concerned with gender/sexuality freedom and illegal interference with family relations, public morality, and social order, respectively.The judiciary institutions have begun to promote gender mainstreaming since 2005, in the hope to rebuild judicial order with gender/sexuality justice. A lot of legislative efforts have been put forward to build up the provisions for protecting gender equality, but law enforcement on the individual cases relating to the gender/sexuality justice is still an important testing ground to indentify the judges' awareness of the subject matters. Therefore, the author decides to analyze the Judicial Yuan's Interpretation Letters #554, #617, and #666 to find out what viewpoints the male honorable justices have on sexual justice.