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  • Interpretation
  • No.278
  • Date
  • 1991/05/17
  • Issue
    • 1) Is Article 21 of the Educators Appointment Act Educational Personnel requiring that qualification for employment as school staff shall be based on passing the School Administrative Personnel Examination or the Senior and Junior Examinations of comparable subjects consistent with the Constitution?
    • 2) May school staff who have not been qualified through examination only be employed at their original schools?
  • Holding
    •        Pursuant to Article 21 of the Educators Appointment Act Educational Personnel, as amended and promulgated on December 19, 1990, qualification for employment as school staff shall be based on passing the School Administrative Personnel Examination or the Senior and Junior Examinations of comparable subjects; such language is consistent with the purpose of appointment by examination as stated in Article 85 of the Constitution. With respect to currently employed school staff who were selected for employment prior to the enactment of said Act, the language “the original laws and regulations shall apply” appearing in said Article does not grant to those who have not been qualified through examination the same status for appointment to public office as those who have been so qualified.  Therefore, such persons may only remain employed at their original schools. The Examination Yuan may determine the qualifications of such school staff through examination.
  • Reasoning
    •        Pursuant to Article 85 of the Constitution, a system of open competitive examination shall be put into operation in the selection of public functionaries, and no person shall be appointed to a public office without being qualified through such examination. This explicitly sets forth the principle of appointment by examination. Article 21 of the Educators Appointment Act Educational Personnel, as amended and promulgated on December 19, 1990, stipulates that qualification for employment as school staff shall be subject to the passing of the School Administrative Personnel Examination or the Senior and Junior Examinations of comparable subjects, conforming to the principle elucidated above. Paragraphs 1 and 2 of said Article, as amended and promulgated on May 1, 1985, stipulate that “qualification for employment as school staff, with the exception of technical personnel, accounting personnel and human resource personnel being governed by their relevant regulations, shall be based on passing the School Administrative Personnel Examination or the Senior and Junior Examinations of comparable subjects.” “The Examination Yuan shall, within a specified time, hold examinations for currently employed school staff who were employed by selection prior to enactment of this Regulation, excepting those who have already been qualified by law, to determine their qualifications. The method of examination shall be established by the Examination Yuan in consultation with the Executive Yuan.  Personnel who do not pass the examination may remain at their current posts until leave.” The purpose of the above provisions is to protect the original rights of personnel who were employed by selection prior to enactment of this Regulation but have not been subsequently been qualified through examination. Amendment to the Regulation on December 19, 1990, combined the then first and second Paragraphs: “Qualification for employment as school staff, with the exception of technical personnel, accounting personnel and human resource personnel and other currently employed persons selected for employment prior to enactment of this Regulation being governed by their relevant regulations, shall be subject to passing the School Administrative Personnel Examination or the Senior and Junior Examinations of comparable subjects.” The provision that currently employed persons selected for employment prior to enactment of this Regulation shall be governed by their relevant regulations is an exceptional measure, and may cause those who have not been duly qualified through examination to obtain the same status for appointment to public office as those who have been so qualified. Therefore, such persons may only remain at their original posts. Since such personnel have not been qualified through examination, the Examination Yuan may, within its professional capacity, hold relevant examinations for those willing to participate therein. 
      
    • Translated by Eleanor Y. Y. Chin, Esq., of the CHIEN YEH LAW OFFICES.
      
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