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  • Interpretation
  • No.323
  • Date
  • 1993/06/18
  • Issue
    • Is a judicial precedent that, by prohibiting administrative litigation over a personnel review, results in a person not meeting qualifications or being demoted in contravention of the Constitution?
  • Holding
    •        If persons who wish to serve as civil servants with various  government agencies receive a review by the agencies in charge of personnel that determine such persons should not be qualified or should be demoted, this decision materially adversely affects the constitutional guarantees of serving in the government.  If these persons undergo a legal procedure for reconsideration and still challenge the same determination of the reconsideration proceedings, they surely may seek administrative appeal or litigation as a redress under the law.  To the extent Judicial Precedent 59-Pan-400 is inconsistent with the above-cited view, it shall cease  to be applied.
      
  • Reasoning
    •        Whether a civil servant receiving an administrative sanction may bring an administrative litigation depends on the nature of the sanction.  If it is one that is sufficient to change his or her status as a civil servant, or one that constitutes a material disciplinary sanction of a civil servant, then the civil servant subject to such a sanction may seek relief with the competent judicial authorities.  This position is clear from our previous Interpretations Nos. 187, 201, 243, 266, 298 and 312.  If persons who wish to serve as civil servants with various government agencies receive a review by the agencies in charge of personnel that determine that such persons should not be qualified or should be demoted, this decision materially adversely affects the constitutional guarantees of serving in the government.  If these persons undergo a legal procedure for reconsideration and still challenge the same determination of the reconsideration proceedings, they surely may seek administrative appeal or litigation as a redress under the law.  Judicial Precedent 59-Pan-400 holds that: “a determination of the qualifications of a would-be civil servant and a decision to hire or not to hire a civil servant by the agencies in charge of personnel are not administrative sanctions by a government agency against private citizens.  If a civil servant disagrees with such a decision, other than seek a reconsideration from a more senior official in his or her agency, he or she may not seek administrative appeal.”  To the extent this Judicial Precedent is inconsistent with our above-cited view, it shall cease to be applied. 
      
    •        As to that part of the petitioner’s application that arises from Article 10, Paragraph 5 of the Enforcement Rules of Act Governing the Replacement Test of the Reserve Military Personnel for Civil Positions, we do not review it because it has not received a final and nonappealable judgment and, therefore, does not comply with rules governing our review.
      
    • *Translated by Lawrence S. Liu.
      
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