Articles 33, Paragraph 1 of the Public Functionaries Discipline Act prescribes that the civil servant who is subject to disciplinary sanctions or the institution which originally transfers the case to the Commission on the Disciplinary Sanctions of Functionaries may file a motion or petition to rehear the decision of disciplinary sanctions where at least one of the conditions set forth in Subparagraphs 1-6 is met.  The terms “decision of disciplinary sanctions” used in Article 33, Paragraph 1 of the above-mentioned law are meant to include the decision handed down after a rehearing.  Precedent No. 335 (Zai-Shen-Tze 335) and other similar precedents are in contravention to this Interpretation, and for the part of limiting civil servants’ rights to institute legal proceedings exceeding limitations provided by law, to the constitutional mandate of the doctrine of reservation to law pursuant to Article 23 of the Constitution.  Consequently, those precedents shall no longer be applicable after the issuance of this Interpretation.

       According to J. Y. Interpretation No. 154, the terms, “law and regulation applied in final and binding judgments”, used in Article 5, Paragraph 1, Subparagraph 2 of the Constitutional Interpretation Procedure Act refer to the governing law and regulation or their equivalents in final and binding judgments.  Pursuant to Article 18 of its Administrative Rules, the Commission on the Disciplinary Sanctions of Functionaries (the Commission) forms the “Editorial Board of Precedents” to select cases with representative facts or legal reasoning as precedents to be used as important reference for the deliberations of future cases.  Before entering into discussions of the above, there is one matter needed to be clarified that since those precedents, which are equivalents to their Supreme Court’s and Supreme Administrative Court’s counterparts, are cited and utilized as governing law by the Commission in disciplinary sanction cases, J. Y. Interpretation No. 154 is applicable to those precedents.

       The right to institute legal proceedings under Article 16 of the Constitution is a constitutional guarantee to ensure people’s rights to bring lawsuits according to legal procedures and for fail trials.   With respect to legal procedures, they fall into the domain of the legislative branch, which in turn may evaluate the nature of lawsuits and enact proper procedural laws accordingly, subject to the constitutional mandate of the doctrine of reservation to law pursuant to Article 23 of the Constitution.  Although civil servants’ constitutional rights may be subject to certain limitations concerning duties of obedience associated with their public service, except for these limitations, their rights to seek for legal remedies when there is an infringement cannot be limited simply by precedents.   If it should be necessary to impose limitations, they shall be prescribed by written law.  Articles 33, Paragraph 1 of the Law on Disciplinary Sanctions of Public Functionaries prescribes that the civil servant who is subject to disciplinary sanctions or the institution which originally transfers the case to the Commission may file a motion or petition to rehear the decision of disciplinary sanctions where at least one of the conditions set forth in Subparagraphs 1-6 is met, provided the motion or petition is filed within the periods specified in Article 34 of the same law.  This specific appellate proceeding to redress grievance for the decisions of the Commission is designed to discover material facts and to ensure the proper application of law.  Moreover, the Commission shall provide a written decision following the procedure delineated in the Law on Disciplinary Sanctions of Public Functionaries on every disciplinary sanction case, on both hearing and rehearing levels.  The nature of the Commission’s decisions made on different levels remains unchanged.  Similarly, in criminal cases, according to Article 436 of the Code of Criminal Procedure, when the ruling of a retrial becomes irrevocable, the courts shall retry the case following their respective trial level’s ordinary procedure.  Except for those circumstances delineated in Article 437, Paragraph 3 of the same law, the court’s judgment is subject to appellate review; a grieving party may also file a petition for a retrial once the judgment becomes irrevocable, if there is a legal ground to do so.  Likewise, according to Article 505 of the Code of Civil Procedure, the procedure of a retrial shall follow respective trial level’s procedural rules.  The courts’ judgments are subject to appellate reviews; grieving parties may also file petitions for retrials once the judgments become irrevocable, provided the requirements set forth in Article 496 and articles thereunder of the same law are met. Also, in administrative cases, according to Articles 28 and 30 of the Law of Administrative Procedure, where judgments of administrative courts meet the causes of retrials set forth in subparagraphs thereof, grieving parties may file petitions for retrials.  Grieving parties may also file petitions for re-retrials on judgments of retrials, provided there is an appropriate cause of action.  Thus, the term “decision of disciplinary sanctions” used in Article 33, Paragraph 1 of the Law on Disciplinary Sanctions of Public Functionaries is not limited to the decision of first hearing.  If there is a cause of action for a rehearing, except for the limitation prescribed in Article 39 of the same law barring a rehearing for the same cause of action, a petition for a rehearing may be filed under different causes of action.  This is so because the decisions of disciplinary sanctions of the Commission do not make the distinction between judgments and rulings under the Law on Disciplinary Sanctions of Public Functionaries as do their criminal sanction counterparts under the Code of Criminal Procedure, and since Articles 33, Paragraph 1, Subparagraph 1 of the same law includes “the erroneous application of law and regulation” as one of the cause of action for a retrial, the law obviously goes beyond the scope of the criminal retrial, which is design to redress errors in fact, and adds up the relief of extraordinary appeal, which is designed to redress errors in law, under the Code of Criminal Procedure.  Namely, the terms “law and regulation” used in Article 33, Paragraph 1, Subparagraph 1 of the Law on Disciplinary Sanctions of Public Functionaries include both substantive and procedural law and regulation.  Therefore, even the Commission’s decisions to reject the motion or petition for a rehearing due to procedural defects cannot be said to infer that such motion or petition contains no substantive content and is completely unsuitable for a rehearing.  As to the decision rejecting a motion or petition for a rehearing for failing to state a claim, it mostly involves substantive deliberations.  For example, Article 33, Paragraph 1, Subparagraph 6 of the above-mentioned law provides a cause of action for a rehearing for the Commission’s failure to consider material evidence which is important enough to affect its decision during the original hearing.  The determination on whether the evidence is important enough to “affect” the decision is to determine whether there are enough grounds to reverse the original decision, and mostly involves substantive deliberations, and cannot be said not suitable to serve the purpose of redressing grievance.  Moreover, unlike those of the Code of Criminal Procedure, Article 34 of the same law prescribes a thirty-day peremptory period for filing a motion or petition for a rehearing.  Furthermore, Article 39, Paragraph 2 of the same law bars a motion or petition for a rehearing for the same cause of action.  Hence, putting these together, the number of times a motion or petition may be filed is limited.  For instance, if a motion or petition for a rehearing is filed for erroneous application of law and regulation and is rejected for failing to state a claim, and if the decision to reject the motion or petition is itself erroneous application of law and regulation, the grieving party can no longer be able to file a motion or petition for rehearing the original decision, i.e., “the first decision”, because of the thirty-day peremptory period and because of the limitation barring a motion or petition for a rehearing for the same cause of action.  Of course, the grieving party may seek for remedy by filing a motion or petition for rehearing the decision rejecting her previous motion or petition.  Likewise, if a motion or petition for a rehearing is filed due to the Commission’s failure to consider material evidence, and if the Commission wrongly determines that there is no such evidence and rejects the motion or petition for failing to state a claim, the result will be the same because of the applications of the above-mentioned peremptory period and the bar.  Accordingly, it will be unfair to say that the Commission’s decision of rejecting a motion or petition for a rehearing is not subject to rehear.

       Precedents No. 335, 351, 411, 452, 478, 486, 489, and 497 (Zai-Shen-Tze 335, 351, 411, 452, 478, 486, 489, and 497) of the Commission all state in principle that, “The Commission’s decision of rejecting a motion or petition for a rehearing is not subject to rehear because the Law on Disciplinary Sanctions of Public Functionaries is silent in this regard.  It is self-evident that Articles 33, 34, and 35 all explicitly prescribe the proceedings to rehear the ‘original decision’.  The terms ‘petition for a rehearing’ used in Article 33 of the same law shall be construed as meaning to rehear the original decision.”  These quoted languages bar absolutely any motion or petition for rehearing the Commission’s decision to reject a motion or petition for a rehearing; therefore, are in contravention to this Interpretation and, for the part of limiting civil servants’ rights to institute legal proceedings exceeding limitations provided by law, to the constitutional mandate of the doctrine of reservation to law pursuant to Article 23 of the Constitution.  As a result, those precedents shall no longer be applicable after the issuance of this Interpretation.

*Translated by Professor Chun-Jen Chen.