The applicant Ming WANG was enrolled in the insurance for public servants and teachers on August 1, 1982, when he first became a teacher in an elementary school. On August 1, 1993, Wang became a teacher at National Jhubei Senior High School, and the school terminated his employment on September 25, 2013. Wang was no longer insured by insurance for public servants and teachers on October 2, 2013. The Administrative Court rescinded the decision to terminate the employment during litigation brought by Wang. Jhubei Senior High School restored Wang’s employment, but the employment was later terminated on May 13, 2015. Wang applied to be enrolled retrospectively in the insurance for public servants and teachers between October 2, 2013 and May 12, 2015. The competent authority refused to enroll the applicant retrospectively in insurance for public servants and teachers for the period in which the applicant was enrolled in the worker insurance and allowed retrospective enrollment only for the periods in which the applicant was not enrolled in the worker insurance. The applicant sued the competent authority in administrative courts. His suit was dismissed on the merits by Taipei High Administrative Court Judgment 106-Su-924 (2017). The applicant further appealed to the Supreme Administrative Court. His appeal was dismissed as a matter of procedure for failure to concretely allege that the previous judgment was inconsistent with the law by the Supreme Administrative Court Order 107-Cai-189 (2018). Therefore, the applicant’s application was directed against the judgment made by the Taipei High Administrative Court as the final judgment.
The applicant opined that Article 6, Sections 3 and 4 of the Act on the Insurance for Public Servants and Teachers, as amended on January 19, 2005 (hereinafter, referred to as the First Disputed Rule), may have violated the constitutional principle of proportionality, and infringes upon individuals’ right to work and property rights protected by the Constitution and thus he applied to the constitutional court for constitutional interpretation. The application satisfies the requirements of Article 5, Paragraph 1, Subparagraph 2 of the Constitutional Court Procedure Act and is hereby accepted for review. In addition, the applicant asserted that Article 6, Sections 4 and 5 of the Act on the Insurance for Public Servants and Teachers as amended on June 1, 2014 (hereafter referred to as the Second Disputed Rule), and in particular the rule in Article 6, Section 5 that the period was not counted toward the calculation of the amount of pension payment, infringes upon the property right protected by Article 15 of the Constitution, and therefore applied for constitutional interpretation. The Second Disputed Rule was not applied by the final judgment, but when the applicant was employed by his previous employer and applied to be enrolled retrospectively in the insurance for public servants and teachers, the period excluded due to his simultaneous and superfluous enrollment in worker insurance covers both before and after June 1, 2014. The Second Disputed Rule is therefore significantly related to the final judgment and should be included in our review. The reasons for our review are set out below.
1.The rights based on which and the standards by which the case is reviewed
The first half of Article 155 of the Constitution and Article 10, Sections 7 and 8 provide that the state should implement social insurance to improve societal welfare. The insurance for public servants and teachers is an institution of social welfare based on insurance to care for public servants and teachers in raising children, diseases, and retirement. (J.Y. Interpretation No. 434) The insurance for public servants and teachers is a kind of social insurance. The pension payment of the types of payments set out by the insurance for public servants and teachers is the obligation of the state to take care of public servants and teachers through monetary payments when public servants or teachers retire at old age or satisfy the statutory requirement. The public servants' and teachers’ right to receive the pension payment per the law. Therefore, a property right in pension payment is protected by Article 15 of the Constitution. (J.Y. Interpretation No. 246, No. 434, No. 596)The legislature enjoys wide latitude to design social insurance institutions. The statutory conditions and amounts of all social insurance payments, including pension payment of the insurance for public servants and teachers, should be designed by the legislature, given the limited nature of the fiscal resources of the nation, the increase or decrease of the population, and the possible impact of the structural change of population on social insurance. In other words, the legislature may, based on public interests, impose limits on the constitutional rights to property of the insured, such as whether public servants and teachers may become enrolled in such social insurance, the years in service counted in such social insurance, the statutory requirements for receiving pension payments, and the amounts received accordingly. If there is a reasonable relationship between the means adopted and the realization of the objectives, it satisfies the principle of proportionality set out in Article 23 of the Constitution and is consistent with the protection of property rights by Article 15 of the Constitution.
2.The First and Second Disputed Rules set out the principle prohibiting simultaneous and superfluous enrollment in social insurance, satisfy the requirement of the principle of proportionality set out in Article 23 of the Constitution, and do not violate the protection of property rights as required by Article 15 of the Constitution
The social insurance of our country was implemented in order of different types of work. Various types of protection and payments are provided in the same insurance system. Workers must enroll in social insurance following the types of their work. As a result, simultaneous and superfluous enrollment is prohibited, as it can allocate social resources superfluously and cause superfluous government subsidies. The First Disputed Rule, therefore, states that the premiums paid because of simultaneous and superfluous enrollment in the insurance are not refundable, but it is refundable if it was caused by events beyond the control of both the employer office or school or the insured public servant or teacher (Section 3) and that Article 6, Section 3 also applies to simultaneous and superfluous enrollment in soldier insurance, worker insurance, or farmer insurance unless otherwise provided by this Act (Section 4). The Second Disputed Rule states that under Article 6, Sections 4 and 5 of the Act, the insured cannot enroll in labor insurance, soldier insurance, farmer health insurance, or citizen annuity insurance unless otherwise provided by this Act (Section 4). It also states that if the insured is enrolled in social insurance for other types of job or citizen annuity insurance, the insured events listed in Article 3 occur, and no indemnity shall be paid unless otherwise provided by this Act. The period of simultaneous and superfluous enrollment shall not be counted toward the calculation of pension, and the premiums paid under this Act shall not be refunded. However, if the simultaneous and superfluous enrollment was caused by events beyond the control of both the employer office or school or the insured public servant or teacher, the premiums may be refunded (Section 5). In other words, in principle, in the insurance for public servants and teachers, if the insured enrolls in social insurance for other types of job or citizen annuity insurance, the period of simultaneous and superfluous enrollment shall not be counted toward the calculation of his/her pension. If the insured events listed by Article 3 occurs, no indemnity shall be paid, and the premiums paid under this Act shall not be refunded. The principle prohibiting simultaneous and superfluous enrollment in social insurance is a limit imposed on the insured’s property right protected in the Constitution. The purpose of such a limit is to avoid double protection, waste of public resources, and superfluous allocation of resources to the same insured person (the government subsidizes the premiums under all types of social insurance, e.g., Article 9, Section 1 of the Act on the Insurance for Public Servants and Teachers, and Article 15 of the Worker Insurance Act). It also helps avoid improper incentives for the insured to receive superfluous payments for the same event. The objectives pursued by such a limit are legitimate public interest, and there is a reasonable relationship between the means adopted and the realization of the objectives. Therefore, it satisfies the requirement of the principle of proportionality set out in Article 23 of the Constitution and is consistent with the protection of property rights under Article 15 of the Constitution.
3.If the decision to fire a public servant or teacher was later rescinded, the period of simultaneous and superfluous enrollment should be counted toward the pension payment for the insurance for public servants and teachers to be consistent with the protection of individuals’ property rights by the Constitution. Article 6, Section 5 of the Act on the Insurance for Public Servants and Teachers does not address the special circumstances in which the simultaneous and superfluous enrollment was beyond the insured's control.
A public servant or teacher may be fired and therefore lose the qualification to be enrolled in the insurance for public servants and teachers. If the firing was later rescinded and the public servant or teacher was restored to his or her previous position, as if there were no such decision of firing (Article 118 of the Administrative Procedure Act), the cause for the withdrawal from the insurance for public servants and teachers disappears. Therefore, the competent authority should approve his or her application to become enrolled retrospectively and count such years toward the calculation of the pension payments. (Article 2, Paragraph 1, Subparagraph 2 and Article 6, Section 1 of the Act on the Insurance for Public Servants and Teachers) If the applicant had participated in other types of social insurance during the unemployment period, it may give rise to simultaneous and superfluous coverage of the insurance for public servants and teachers, and other types of social insurance. However, this type of simultaneous and superfluous coverage was caused by the relevant public authority, beyond the control of the insured, and therefore different from the usual simultaneous and superfluous coverage. If the period of such simultaneous and superfluous coverage is not counted toward the calculation of pension payment, the right of the insured to receive his/her pension payment would necessarily be diminished. As the legislature does not explicitly provide such circumstances, the period of such simultaneous and superfluous enrollment should be counted toward the pension insurance payment for public servants and teachers to be consistent with the protection of property rights under the Constitution. Therefore, Article 6, Section 5 of the Act on the Insurance for Public Servants and Teachers does not address the special circumstances in which the simultaneous and superfluous enrollment was beyond the insured's control.
After this interpretation was announced, the relevant government offices should review the applicant’s application to be insured retrospectively following this interpretation.
4.Dismissal as a matter of procedure
The applicant asserted that the Ministry of Civil Service Letter Bu-Tuei-Yi-1003414233 of July 14, 2011, and the Ministry of Civil Service Letter Bu-Tuei-Yi-1013616450 of November 30, 2012, violated the Constitution. As the Ministry of Civil Service wrote these letters in response to the inquiries made by the Department of Insurance for Public Servants and Teachers, Bank of Taiwan, and the office of a legislator transmitting the petition of an individual, these letters are letters between government offices and letters about individual cases. As these letters only explain how the law should be applied in particular cases, they are not the “regulations” referred to by Article 5, Paragraph 1, Subparagraph 2 of the Constitutional Court Procedure Act, and therefore, not the objects against which constitutional interpretation may be sought. In conclusion, these assertions are dismissed as a matter of procedure.
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＊Translated by Chi CHUNG