Have Your Say - Unconstitutional Laws Void Immediately, Now What?

Last edited: 2026-07-27

Wu Ching-ch'in / Associate Professor and Department Chair, Department of Law, Aletheia University

The Grand Justices recently rendered Judicial Yuan Interpretation No. 725. For unconstitutional statutes or regulations declared to become void within a set period, if the constitutional interpretation petitioner initiates extraordinary legal remedies—namely retrial or extraordinary appeal—within that period, the courts may no longer refuse to accept the case on the grounds that the statute or regulation remains valid. While this can be considered a realization of the protection of the people's right to litigation, it also reflects the extremely conservative side of our judiciary.

According to Article 78 of the Constitution, interpretations of the Constitution by the Grand Justices shall be binding on all state organs and the people. Therefore, laws declared unconstitutional should naturally become void immediately. However, if a court previously cited such laws as the basis for a judgment prior to the declaration of unconstitutionality, whether the people may subsequently file for a retrial or have the Prosecutor-General initiate an extraordinary appeal based thereon was a question left unanswered in the existing legal system.

Consequently, the Grand Justices explicitly pointed out in Interpretations No. 177 and No. 185 that, regarding the underlying case that prompted the constitutional interpretation petition, a retrial or extraordinary appeal may be filed based on the interpretation declaring unconstitutionality, thereby bridging the legislative gap.

Nevertheless, the controversy did not end there. Sometimes, in order to avoid a legal vacuum resulting from the immediate invalidation of laws, the Grand Justices have followed the practice of the Federal Constitutional Court of Germany by adopting interpretations with a delayed invalidation period, allowing the legislative and executive branches to enact complete legislative amendments and accompanying measures. Yet, when petitioners sought to overturn their cases by initiating extraordinary remedies based on such a buffer period, courts actually interpreted the unconstitutional laws as still remaining valid and thus dismissed the petitioners' requests.

Such logically incoherent interpretations that completely ignore the protection of the right to litigation have actually become the mainstream view in judicial practice, which is truly baffling and makes one even more astonished at the judiciary's rigid mindset that clings to the status quo.

Although Interpretation No. 725 has completely repudiated this legal view, lingering problems remain. Other cases that involved the application of unconstitutional laws—yet were not the petitioner for the interpretation—are not included among those permitted to initiate extraordinary remedies. This is because if all cases resulting from judgments rendered pursuant to unconstitutional laws were allowed to initiate extraordinary remedies, the Grand Justices would become a fourth instance court, and the judiciary would find it difficult to bear the burden.

However, this mindset of avoiding "freeloading" arguably overemphasizes legal stability while neglecting the protection of people's rights, and is indeed open to debate. More importantly, issues such as the exact legal effect of Grand Justices' interpretations and the scope of their binding power should be explicitly stipulated in statute. If matters everywhere require supplementation through interpretations by the Grand Justices, it is not only too slow to meet urgent needs, but also not how a rule-of-law state should operate.

Have Your Say - Unconstitutional Laws Void Immediately, Now What?

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