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  • Interpretation
  • No.246
  • Date
  • 1989/09/29
  • Issue
    • The interpretative letter issued by the Ministry of Civil Service states that the monthly salary used as a basis for calculating pension or seniors’ benefits under the Public Functionaries Insurance Act does not include work allowance, full attendance allowance for military staffers and supervisors’ allowance. Is said letter contrary to the meaning and purpose of Articles 22, 155 and 172 of the Constitution?
  • Holding
    •        While public functionaries have legal rights to claim pension and seniors* insurance, the payment standards are a matter of legislative policy to be stipulated by laws or regulations delegated by laws.  Regarding the payable amount of pension under the item of "Other Cash Pay" as provided in Article 8, Paragraph 1, of the Public Functionaries Retirement Act, paragraph 2 of the same Article stipulates that the Examination Yuan shall set the standards in collaboration with the Executive Yuan. Accordingly, Article 24 of the Public Functionaries Insurance Act delegates its Enforcement Rules to provide (in Article 15, Paragraph 1) that "the monthly pay or the current-month pay for the insured, as referred to in Articles 8 and 14 of the Act [the Public Functionaries Insurance Act] is temporarily set according to the monthly pay standard for government employees and teachers." Article 7 of the Regulations Governing the Payment of Remuneration to Military, Public and Teaching Personnel, promulgated by the Executive Yuan on June 12, 1981, provides that work allowance, full attendance allowance for military staff and supervisors* allowance shall not be included when calculating the civil (military) retirement insurance and that allowances shall not be paid to those who do not actually discharge the duties. The above rules do not exceed the scope of discretion embodied in the laws or the delegated regulations and thus do not violate the Constitution since they are based on the financial status of the country, on the actual conditions of services, and on the payment of insurance premiums. Likewise, the ordinance made in the Executive Yuan letter (Letter No.Tai- (59)Ren-Jung- Sze-Tze 17897) stating that "the half pay for a public functionary during his/her suspension period and the reimbursement pay upon his/her reinstatement shall not include work allowance since he/she did not actually discharge the duties" is consistent with the Constitution because it is merely an explanation of the concept that work allowance is only for those who actually discharge their duties.
  • Reasoning
    •        The State enacts laws establishing the retirement and pension programs for public functionaries under the mandate of Article 83 of the Constitution. Therefore, public functionaries have legal rights to claim pension and seniors* insurance. However, the payment standards are a matter of legislative policy to be stipulated by laws or regulations delegated by laws. Regarding the payable amount of pension under the item of "Other Cash Pay" as provided in Article 8, Paragraph 1, of the Public Functionaries Retirement Act, paragraph 2 of the same article stipulates that the Examination Yuan shall set the standards in collaboration with the Executive Yuan. Accordingly, Article 24 of the Public Functionaries Insurance Act delegates its Enforcement Rules to provide (in Article 15, Paragraph I) that "the monthly pay or the current-month pay for the insured, as referred to in Articles 8 and 14 of the Act [the Government Employee Insurance Act] is temporarily set according to the monthly pay standard for government employees and teachers." The Public Functionaries Remuneration Act, before or after its amendment on July 16, 1986, also mandated that the competent authority shall set the standards of various allowances and the criteria for converting credits into remuneration. In order to implement this law, the Executive Yuan amended the Regulations Governing the Payment of Remuneration to Military, Public and Teaching Personnel on June 12, 1981, Article 7 of which provides that work allowance, full attendance allowance for military staff and supervisors* allowance shall not be included when calculating the civil (military) retirement insurance and that allowances shall not be paid to those who do not actually discharge the duties. On these points, the Ministry of Civil Service has also given directives (Letter No. (67)Tai-Kai-Te-Er-Tze 0579 and (68) Tai-Kai-Te-Sen-Tze 2348). The above rules and directives do not exceed the scope of discretion embodied in the laws or the delegated regulations and thus do not violate the Constitution since they are based on the financial status of the country, on the actual conditions of services, and on the payment of insurance premiums relating to the seniors* program. In other words, the above rules and directives are flexible for they are set and adjusted based on the economic situations of the citizens. Likewise, the ordinance made in the Executive Yuan letter (Letter No. Tai- (59) Ren-Jung-Sze-Tze 17897) stating that "the half pay for a public functionary during his/her suspension period and the reimbursement pay upon his/her reinstatement shall not include work allowance since he/she did not actually discharge the duties is consistent with the Constitution because it is merely an explanation of the concept that work allowance is only for those who actually discharge their duties.  
      
    • *Translated by Pijan Wu.
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