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  • Interpretation
  • No.266
  • Date
  • 1990/10/05
  • Issue
    • May a public functionary file an appeal or administrative action for property rights in accordance with laws and regulations, based upon a final result of merit evaluation that does not affect the status of such public functionary?
  • Holding
    •        The removal of a public functionary from his or her office pursuant to the Public Functionaries Merit Evaluation Act has changed the status of such public functionary, which directly affects the people’s right to serve the state. Based on J. Y. Interpretation No. 243, such removed public functionary may bring administrative action. Public functionaries not satisfied with the outcome of merit evaluation, yet whose status has not been affected, are prohibited from bringing an administrative litigation requesting relief. However, should a public functionary bring a claim, based upon a final result of such merit evaluation, for property rights in accordance with the laws and regulations, such functionary’s property right has been affected (see J. Y. Interpretations Nos. 187 and 201) and the person can file an administrative appeal or administrative litigation. The part of Administrative Court Precedent 1957 Pan-Tze No. 11 inconsistent with the above shall no longer be applicable. Whether such property claim is based upon a final merit evaluation is a question of facts, which should be decided case by case, and therefore it does not fall within the scope of this Interpretation. 
      
  • Reasoning
    •        Whether a public functionary may bring an administrative litigation when he or she suffers harm from an administrative act arising out of his or her status of holding office (so as to damage his or her rights available under the law), shall depend upon the contents of such administrative decision in order to conform to the constitutional requirement of protecting the rights of the people. This is clearly set forth in J. Y. Interpretations Nos. 187 and 201. The removal of a public functionary from his or her office pursuant to the Public Functionaries Merit Evaluation Act has changed the status of such public functionary, which directly affects the people’s right to serve the state as guaranteed by the Constitution. Pursuant to J. Y. Interpretation No. 243, such removed public functionary may bring administrative litigation. Public functionaries not satisfied with the outcome of merit evaluation, yet whose status has not been affected, are prohibited from bringing an administrative litigation for relief.  However, should a public functionary bring a claim, based upon a final result of such merit evaluation, for property rights in accordance with the laws and regulations, such functionary’s property right has been affected (see J. Y. Interpretations Nos. 187 and 201) and said person can file an administrative appeal or administrative litigation. Administrative Court Precedent 1957 Pan-Tze No. 11 states that: “The right to file an administrative appeal is limited to the people whose rights are infringed upon by an illegal or inappropriate administrative act committed by the authority, which in turn causes damages to the rights or interests thereto. Administrative appeals may not be brought on grounds arising from special power relations or disputes resulting from private law relations. The plaintiff was a public functionary of Makung Town, Penghu County, but not a formal staff member within the governmental body, and even though s/he could be deemed a public functionary of a self-governing organization, the relationship between the plaintiff and the defendant authority should be that of a special relationship of authority. If the plaintiff were dissatisfied with the matters regarding back pay, s/he should have filed a complaint within the said organization but should not have filed an administrative appeal asserting the Administrative Appeal Act. After the dissolution of the plaintiff’s department, s/he was hired as an engineer at a water company, which relationship is of a purely private employer-employee type. Thus, the dispute involves a private relationship and, even though the plaintiff disagreed with the salary given upon suspension, s/he obviously should not have filed an administrative appeal.” The foregoing part of the abovementioned Precedent that is inconsistent with this Interpretation above shall no longer be applicable. Further, whether such property claim is based upon a final merit evaluation is a question of facts, which should be decided case by case, and therefore it does not fall within the scope of this Interpretation. 
      
    • *Translated by Alex C. Y. Tsai, Esq. and Chien Yeh Law Offices.
      
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