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  • Interpretation
  • No.298
  • Date
  • 1992/06/12
  • Issue
    • Which authority should govern the relief procedure of the disciplinary measures with consequence sufficient to change the status of the public functionaries or with serious impact on such public functionaries?
  • Holding
    •        According to Article 77 of the Constitution, the Judicial Yuan shall take charge of cases concerning disciplinary measures against public functionaries. Depending on the nature of the said disciplinary measures, laws may be made to allow top-ranking officials to take such measures, within reasonable scope. However, in cases concerning disciplinary measures with consequence sufficient to change the status of the public functionaries or with serious impact on such public functionaries, the person under order of disposition may file an objection with the judicial organ in charge of disciplinary measures; the said organ will then examine the original disciplinary measures to decide whether there is any contradiction with the law or any other inappropriateness, and whether legal relief shall be offered. Relevant laws shall be amended accordingly, and supplements to Interpretation No. 243 of the Judicial Yuan shall be made. Permission, as provided for in the said Interpretation, for the public functionary punished by removal from office to file an administrative litigation means that the persons under order of disposition may, prior to the amendment of laws concerning disciplinary measures against public functionaries and merit evaluation, appeal for judicial relief.
  • Reasoning
    •        Article 77 of the Constitution stipulates: "The Judicial Yuan shall be the highest judicial organ of the State and shall take charge of civil, criminal, and administrative cases and of cases concerning disciplinary measures against public functionaries." Therefore, the Judicial Yuan is the highest organ taking charge of cases concerning disciplinary measures against public functionaries. However, this does not mean that the Judicial Yuan shall in exercising its rights to discipline public functionaries, take direct charge of all cases concerning disciplinary measures against public functionaries. “Disciplinary measures against public functionaries” means sanctions against law breaking and negligence by public functionaries. Such disciplinary measures are necessary for maintaining supervisory rights of top-ranking officials and therefore, depending on the nature of the said disciplinary measures, laws may be made to allow top-ranking officials to take such measures, within reasonable scope. However, in cases concerning disciplinary measures with serious impact on the public functionaries, the person under order of disposition may file an objection with the judicial organ in charge of disciplinary measures; the said organ will then examine the original disciplinary measures to decide whether there is any contradiction with the law or any other inappropriateness, and whether legal relief is to be offered. Laws concerning disciplinary measures against public functionaries and their merit evaluation shall be amended accordingly. Supplements to Interpretation No. 243 of the Judicial Yuan shall also be made. Permission, as provided for in the said Interpretation, for the public functionary punished by removal from office to file an administrative litigation shall mean that the person under order of disposition may, prior to the amendment of relevant laws, appeal for judicial relief. It shall also be pointed out that, with statutory qualification as a prerequisite for employment as a public functionary and for the guarantee of such status, in the case where a public functionary is dismissed from a current position through punishment other than disciplinary measures and fails to obtain legal remedy through administrative procedures, the said public functionary may still apply to Interpretation No. 243 of the Judicial Yuan and, in accordance with the laws, file an administrative litigation to appeal for relief.
      
    • *Translated by Dr. C.Y. Huang of Tsar & Tsai Law Firm.
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