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  • Interpretation
  • No.268
  • Date
  • 1990/11/09
  • Issue
    • May the examinee that has passed the examinations for public functionaries and for professionals and technicians, which have the same examination criteria and the same subjects, be granted two qualifications?
  • Holding
    •        As promulgated on August 29, 1962, Article 7 of the Examination Act states that the examinee that has passed the examinations for public functionaries and for professionals and technicians, which have the same examination criteria and the same subjects, will be granted two qualifications. Any determination deeming the above Article unsound shall be made by legislative amendment. However, prior to such amendment, Article 9, Paragraph 2, of the Enforcement Rules for the Examination Act, revised and promulgated on June 15, 1982, provides that, in order for the examinee to be granted two qualifications, his/her total scores upon passing the examinations for public functionaries and for professionals and technicians shall meet the standard for the enrollment of professionals and technicians, which creates a restriction apparently departing from the statutory requirement so as to prevent qualified examinees from being granted two qualifications. The said Article 9, Paragraph 2, shall no longer be applicable since it is in contravention to Article 172 of the Constitution, which protects the people’s right.
      
  • Reasoning
    •        Article 18 of the Constitution prescribes that “[t]he people shall have the right to take civil service examinations and hold public office.” Taking examinations is an essential step for acquiring qualifications for appointment as public functionaries, or qualifications for practice in specialized professions or as technicians, which is clearly regulated by Article 86 of the Constitution. This qualification in relation to the people’s right to work, protected by the Constitution, shall not be restricted by ordinances, regulations, or rules. As promulgated on August 29, 1962, Article 7 of the Examination Act provides that: “The examinee that has passed the examinations for public functionaries and for professionals and technicians, which have the same examination criteria and the same subjects will be granted two qualifications.” Said Article was created to save trouble for the person who intends to acquire both qualifications but must take two respective examinations. Nevertheless, in terms of the standard for passing the two different examinations, the law has not so regulated to require their being the same. When the standards are different for the said two examinations, it will be hard not to grant two different qualifications, inclusive of the qualification for professionals and technicians, for such examinee having passed the examination for public functionaries. Any determination deeming the above Article unsound shall be made by legislative amendment. The Examination Yuan had once drafted a proposed amendment of Article 7 to include the following language: “the examinee that passes the examination for public functionaries, yet wants to attain the passing standard for the examination for professionals and technicians, shall not be granted at the same time the qualification for professionals and technicians.” After the abovementioned proposed draft was delivered to the Legislative Yuan for review on November 4, 1980, the Legislative Yuan rejected said draft and retained the existing Article 7. (See Legislative Yuan Bulletin, Vol. 69, Issue 89, pp. 2-18). On June 15, 1982, the Examination Yuan revised and promulgated Article 9, Paragraph 2, of the Enforcement Rules for the Examination Act, wherein it reads: “In order for the examinee to be granted two qualifications, his/her total scores upon passing the examinations for public functionaries and for professionals and technicians shall meet with the standard for the enrollment of professionals and technicians.” Said Article 9, Paragraph 2, creates a restriction apparently departing from the said statutory requirement so as to prevent qualified examinees from being granted two qualifications simultaneously, and shall no longer be applicable since it is inconsistent with Article 172 of the Constitution, which protects the people’s right.
      
    • *Translated by Spenser Y. Hor, Esq. and Chien Yeh Law Offices.
      
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