Go to Content Area :::

Decisions

Home > Decisions > Docket Search > Before 2022
:::
:::
  • Interpretation
  • No.396
  • Date
  • 1996/02/02
  • Issue
    • Does the Public Functionaries Discipline Act violate Article 16 of the Constitution since it lacks an appellate system and cannot fully protect the people*s right to initiate legal proceedings, and shall it therefore be amended accordingly?
  • Holding
    •        Article 16 of the Constitution stipulates that the people have the right to initiate legal proceedings, and such right may be prescribed by the legislative authority taking into account the nature of each type of litigation case for the purpose of safeguarding the right of litigation under the judicial system. Where a public servant is subject to disciplinary measures for violation of law whilst discharging his/her duties as public servant or for failure to discharge his/her duties properly as public servant, the disciplinary measures whereof are clearly stipulated by the Constitution to fall within the jurisdiction of the judiciary. Although the Public Functionaries Discipline Act provides that determination made by the Commission on the Disciplinary Sanctions of Functionaries shall be final as regards disciplinary cases, Article 16 of the Constitution shall not be considered violated where no ordinary appellate system of relief is created. Since the disciplinary measures affect the right to hold public office granted by the Constitution and the members of the disciplinary authority are judges as construed under the Constitution, according to Article 82 of the Constitution and the intent under this Yuan Interpretation No.162, the authority itself shall adopt the mechanism of a court and the determination of disciplinary cases shall comply with the principle of due process of law so as to provide sufficient procedural safeguards to the disciplined persons. For example, the systems of direct trial, oral arguments, cross-examination, and defense may be adopted to provide the disciplined persons with a last opportunity to expound, etc., so as to implement the intent under Article 16 of the Constitution in relation to the safeguarding of the people*s right to litigation. Review and amendment should be made by the relevant authorities with respect to the organization, name, and disciplinary procedure of the public servants’ disciplinary authority.
  • Reasoning
    •        The right of the people to institute legal proceedings under Article 16 of the Constitution is an entitlement to systematic safeguard of relief which is available when their rights are violated. The actual content of such right can only be affected through stipulation of laws relating to the organization of courts and the litigation procedures by the legislative authorities. Since the safeguarding of the people*s right to litigation lies at the core of the Constitution, and is a basic prerequisite for the right to litigation, any lack whereof shall conflict with the intent of Article 16 of the Constitution in relation to safeguarding of the people*s right to litigation. The general principle of law contained in this Yuan Interpretation No. 243, which provides that rights are accompanied with relief, aims to elucidate that the people cannot be deprived of the right to request relief from the court which lies at the heart of the safeguarding of the right to litigation. The judicial system with various proceedings which provides for the safeguarding of the right to litigation shall be established by the legislative authority having consideration of the nature of each type of litigation case. Where a public servant is subject to disciplinary measures for violation of law whilst discharging his/her duties as public servant, or for failure to discharge his/her duty properly as public servant, the disciplinary measures whereof are clearly stipulated by the Constitution to fall within the jurisdiction of the judiciary. Although the Public Functionaries Discipline Act provides that determination made by the Commission on the Disciplinary Sanctions of Functionaries shall be final as regards disciplinary cases, Article 16 of the Constitution shall not be considered violated where no ordinary appellate system of relief is created.
      
    •        Strictly speaking, the so-called judicial authority under the Constitution refers to the Judicial Yuan and the courts of law (including tribunals), and the officials exercising the judicial right are the grand justices and the judges. Disciplinary matters pertaining to the discipline of public servants by the Commission on the Disciplinary Sanctions of Functionaries fall within the ambit of the exercise of judicial rights and are exercised by the judges under the Constitution. Since the disciplinary measures affect the right to hold public office granted by the Constitution and the members of the disciplinary authority are judges as construed under the Constitution, according to Article 82 of the Constitution and the intent under this Yuan Interpretation No.162, the authority itself shall adopt the mechanism of a court and the determination of disciplinary cases shall comply with the principle of due process of law so as to provide sufficient procedural safeguards for the disciplined persons. For example, the systems of direct trial, oral arguments, cross- examination, and defense may be adopted to provide the disciplined persons with a last opportunity to expound, etc., so as to implement the intent under Article 16 of the Constitution in relation to the safeguarding of the people*s right to litigation. Review and amendment should be made by the relevant authorities with respect to the organization, name, and disciplinary procedure of the public servants’ disciplinary authority. 
      
    • *Translated by BAKER & McKENZIE.
Back Top