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Between choice and tradition : rethinking remedial grace periods and unconstitutionality management in a comparative light
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Kuo, Ming-Sung (2019) Between choice and tradition : rethinking remedial grace periods and unconstitutionality management in a comparative light. UCLA Pacific Basin Law Journal, 36 (2). pp. 157-200. ISSN 0884-0768.
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Official URL: https://escholarship.org/uc/item/8rk6v01d
Abstract
Recent experiences of constitutional review in the common law world have received increasing attention in comparative constitutional law scholarship. Looking beyond the common law jurisdictions, this Article investigates the influence of variations on unconstitutionality management and changing constitutional politics on the functional mutation of remedial grace periods. Through a case study of Taiwan in light of the comparison of the civilian-continental vs. common law models of constitutional review, it argues that legal tradition and the court’s role vis-à-vis the political branch in the dynamics of constitutional politics jointly contribute to the multifunctional role of remedial grace periods in unconstitutionality management. As part of unconstitutionality management across constitutional jurisdictions, the granting of remedial grace periods is not simply the manifestation of judicial strategy. The argument unfolds in three main Parts. Part I first compares the use of remedial grace periods in constitutional review under the civilian-continental and the common law models. After drawing out the different paths toward unconstitutionality management in comparative constitutional review, Part II conducts a functional analysis of remedial grace periods in the case law of the Taiwan Constitutional Court (TCC). It is observed that the three forms of remedial grace periods—bridging, nudging, and hedging—as indicated in the TCC case law are informed by the conceptual framework of graduated unconstitutionality borrowed from the civilian-continental model. Part III further analyzes how remedial grace periods have been instrumental to the TCC’s realization of its institutional potential. In conclusion, the TCC’s continuing and frequent prescription for remedial grace periods indicates its default position in constitutional remedies, which is both informed by the civilian-continental model and shaped by its formative experience at the dawn of democratization.
Item Type: | Journal Article | ||||||
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Subjects: | K Law [Moys] > KM Common Law, Public Law | ||||||
Divisions: | Faculty of Social Sciences > School of Law | ||||||
Library of Congress Subject Headings (LCSH): | Constitutional law -- Taiwan -- Case studies, Common law -- Taiwan -- Case studies | ||||||
Journal or Publication Title: | UCLA Pacific Basin Law Journal | ||||||
Publisher: | University of California * School of Law | ||||||
ISSN: | 0884-0768 | ||||||
Official Date: | 2019 | ||||||
Dates: |
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Volume: | 36 | ||||||
Number: | 2 | ||||||
Page Range: | pp. 157-200 | ||||||
Status: | Peer Reviewed | ||||||
Publication Status: | Published | ||||||
Access rights to Published version: | Open Access (Creative Commons) | ||||||
Date of first compliant deposit: | 20 February 2019 | ||||||
Date of first compliant Open Access: | 21 February 2019 | ||||||
Related URLs: | |||||||
Open Access Version: |
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