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  • Interpretation
  • No.412
  • Date
  • 1996/08/02
  • Issue
    • Is Article 10 of the Enforcement Rules of the Act Governing the Replacement Test of the Reserve Military Personnel for Civil Positions promulgated by the Examination Yuan in contravention to its statutory authority, or to the constitutional mandate of equal protection of the right to work under Article 7 of the Constitution?
  • Holding
    •        Article 6 of the Act Governing the Replacement Test of the Reserve Military Personnel for Civil Positions authorizes the Examination Yuan to promulgate enforcement rules.  Under this authorization and taking into account that the Public Functionaries Appointment Act and the Public Functionaries Remuneration Act were reestablished and enacted in 1986 and implemented on January 16, 1987, the Examination Yuan on January 11, 1988, promulgated Article 10, Paragraph 5, of the Enforcement Rules of the Act Governing the Replacement Test of the Reserve Military Personnel for Civil Positions limiting the applications of the Act Governing the Replacement Test of the Military Reserve Personnel for Civil Reappointment to those who seek reappointments after January 16, 1987.  It represents the efforts of the Examination Yuan to coincide with the newly enacted Public Functionaries Appointment Act and the Public Functionaries Remuneration Act and a set of rules promulgated after considering the differences of various circumstances.  Therefore, it is neither in contravention to the Act Governing the Replacement Test of the Reserve Military Personnel for Civil Positions, nor to the constitutional mandate of equal protection of the right to work.
  • Reasoning
    •        The principle of equal protection under Article 7 of the Constitution provides de jure equality, i.e., the legislature may, with different legislative intents, enact different laws to respond to various factual circumstances pursuant to the nature of matters.  The legislature may also enact laws and authorize the administrative branch to promulgate reasonable and necessary rules applicable under different factual circumstances.  Article 6 of the Act Governing the Replacement Test of the Reserve Military Personnel for Civil Positions authorizes the Examination Yuan to promulgate enforcement rules.  According to this authorization, the Examination Yuan in 1980 amended and implemented Article 10, Paragraph 1, of the Enforcement Rules of the Act Governing the Replacement Test of the Reserve Military Personnel for Civil Positions regulating correspondent rankings between military personnel and public functionaries to enable qualified military personnel to be reappointed to proper rankings as public functionaries.  The legislative intent of Article 10, Paragraph 1, of the above-mentioned Enforcement Rules is the same as that of Article 2 of the Act of Assignment for Officers and Noncommissioned Officers of the Armed Forces, which provides a chart of Correspondent Ranks between Officers and Noncommissioned Officers of the Armed Forces and Civil Servants.  Article 10, Paragraph 2, of the same Enforcement Rules stipulates that the ranking bases of the reappointments are those provided in the Public Functionaries Remuneration Act or the Classified Rankings for Public Functionaries Remuneration Act.  Both Paragraphs 1 and 2 of Article 10 of the Enforcement Rules at issue are practically necessary for the factual differences in superiority and seniority of those qualified military personnel. Thereafter on January 11, 1988, taking into account the fact that both the Public Functionaries Appointment Act and the Public Functionaries Remuneration Act were reestablished and enacted in 1986 and implemented on January 16, 1987, the Examination Yuan promulgated Article 10 of the Enforcement Rules of the Act Governing the Replacement Test of the Reserve Military Personnel for Civil Positions on January 11, 1988.  Besides the emendation to said Paragraph 2 thereof and the addition of Paragraph 5, the aforesaid Article 10 expressly limits the applications of the Act Governing the Replacement Test of the Reserve Military Personnel for Civil Positions to those who seek reappointments after January 16, 1987.  It represents the efforts of the Examination Yuan to coincide with the newly enacted Public Functionaries Appointment Act and the Public Functionaries Remuneration Act and a set of rules promulgated after considering differences under various circumstances.  Accordingly, it is neither in contravention to the Act Governing the Replacement Test of the Reserve Military Personnel for Civil Positions, nor to the constitutional mandate of equal protection of the right to work. 
      
    • *Translated by Professor Spenser Y. Hor.
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