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  • Interpretation
  • No.320
  • Date
  • 1993/06/18
  • Issue
    • Is the provision of the Enforcement Rules of the Act Governing Land Grants to Soldiers, which prescribes a base day for the issuance of disability benefits, unconstitutional?
  • Holding
    •        The Act Governing the Handling of Land Grant Certificates to Soldiers (hereinafter the “Handling Act”) is enacted to make compensation according to various bases that are determined by different situations for the purpose of recovering the land grant certificates for soldiers already received by eligible soldiers pursuant to the Act Governing Land Grants to Anti-Communist and Anti-Soviet Soldiers (hereinafter the “Land Grant Act”).  Although the Land Grant Act did not come into force until October 18, 1951, the provisions of Article 5 and Article 11, Paragraph 2, thereof do not set limits by stating that the war-induced physical injuries and disabilities contemplated thereunder should have occurred subsequent to that date.   Article 3, Paragraph 1, of the Enforcement Rules of the Act Governing the Handling of Land Grant Certificates for Soldiers provides that disability benefits will not be issued to the personnel whose disability occurred after October 18, 1951, thus ruling out the opportunity of those who were injured and disabled during war before that date and have already had land grant certificates to receive disability benefits based on the criteria set forth in the Handling Act.  The said provision is inconsistent with the law and violates the intent of the Constitution to protect the rights of the people and, therefore, should not be applied.  In respect of the scope of war from which the injury sustained by the respective soldiers or soldiers resulted, the competent authorities should, as a matter of course, set limits according to the legislative intent of the respective laws.
  • Reasoning
    •        Article 1 of the Act Governing the Handling of Land Grant Certificates for Soldiers, as enacted and promulgated on April 23, 1990, provides, “This Act is enacted to recover the land grant certificates for soldiers previously issued upon repeal of the Act Governing Land Grants to Anti-Communist and Anti-Soviet Soldiers and the Enforcement Rules thereof.”  Article 3, Paragraph 1, of the same Act further provides, “A compensation for each land grant certificate for soldiers shall be given according to a base number from one to ten; and the amount for each base is fifty thousand New Taiwan dollars (NT$50,000). Other than the dependent(s) of a soldier killed in action or killed in the line of duty, or a soldier disabled due to injury during war, or a soldier over the age of fifty living on his own without any retirement benefits, or assistance and counsel in care or employment, who shall receive the maximum of ten bases, the number of bases for the remaining soldiers shall be determined by the Executive Yuan on a case-by-case basis.”  Although the Land Grant Act was promulgated on October 16, 1951, and came into force on October 18 of the same year, the provisions of Article 5 and Article 11, Paragraph 2, thereof do not set any limit by stating that the war-induced physical injury and disability contemplated thereunder should have occurred subsequent to that date when it is a matter of determining whether a disability existed at the time of issuance of the land grant certificate.  Furthermore, the Handling Act is originally designed and intended to deal with the pre-existing fact that such land grant certificates were previously received by certain people and the fact that a land grant certificate is presumed to be issued under Article 10 thereof by making compensation under certain procedures and, therefore, there should be no issue concerning retroactivity.  With respect to the pre-existing fact that a disability occurred, the Handling Act does not impose any restrictions by limiting the benefit to such disability as has occurred subsequent to October 18, 1951.  Article 3, Paragraph 1, Subparagraph 3, of the Enforcement Rules of the Handling Act abruptly provides, “A soldier injured and disabled during war should mean one who was so injured subsequent to the date of promulgation of the Act Governing Land Grants to Anti-Communist and Anti-Soviet Soldiers, and whose injury was determined to be a level three disability or above, and whose application for injury and/or disability compensation was duly recorded.”  Accordingly, any opportunity for those who were injured and disabled during war before that date and have already had land grant certificates to receive disability benefits based on the criteria set forth in the Handling Act is ruled out.  Such provision is inconsistent with the law and violates the intent of the Constitution to protect the rights of the people and, therefore, should not be applied.  In respect of the scope of war from which the injury sustained by the relevant soldiers or soldiers resulted, the competent authorities should, as a matter of course, set limits by taking into consideration the legislative intent of the respective laws,  including the definition of soldiers as prescribed under Article 2 of the Land Grant Act and the limitations on the total amount of compensation as set forth in the proviso of Article 3, Paragraph 1, of the Handling Act. 
      
    • *Translated by Vincent C. Kuan
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