宪法审查的穷尽法律救济原则

The Doctrine of Exhaustion of Remedies in Constitutional Review

"穷尽法律救济原则"是各国宪法审查制度普遍采行的启动要件,它在集中式审查模式中主要存在于宪法诉愿程序中,而在分散式审查模式中主要体现为"穷尽行政救济"。然两类规范形态具有相通的双层结构规范内涵:在判断是否已穷尽相关法律救济之后,对于未穷尽者,进一步判断其是否属于具有普遍性意义或者会产生重大且无法避免之损害的例外情形,以谨慎决定宪法审查是否可提前。这既体现出宪法审查的备位性,也说明备位性须受到人权保障之价值目标的限制。

＂The doctrine of exhaustion of remedies＂ is widely deemed as a threshold requirement to initiate a constitutional review, which, in a centralized review, mainly applies to constitutional complaint procedures, and in a decentralized one, tends to apply in the form of ＂exhaustion of administrative remedies. ＂ The two forms of application, however, have similar double-structured normative connotations： firstly, determining whether the prescribed remedies are exhausted, which is the general exhaustion requirement; secondly, in case of no exhaustion, further determining whether it is of general meaning or the no-exhaustion is an exception that will result in material and unavoidable injuries, so as to decide cautiously whether to have a constitutional review in advance. The analysis, while revealing the subsidiary feature of the constitutional review, indicates that such a subsidiary feature is also subject to the values of protection of human rights.