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  • Interpretation
  • No.430
  • Date
  • 1997/06/06
  • Issue
    • May active service military officers who file petitions for remaining on active duty according to pertinent rules and whose petitions are rejected following orders of discharge, if they question the orders, seek remedies by lodging administrative appeals and bringing administrative proceedings following the respective due procedures?
  • Holding
    •        Article 16 of the Constitution guarantees the people the right to lodge administrative appeals and the right to institute legal proceedings.  When the people’s rights or interests protected by law are infringed, their rights to lodge administrative appeals or to institute legal proceedings following proper legal procedures cannot be limited simply because of their posts or occupations.  We have already repeatedly stated that whether civil servants who are subject to administrative acts due to their posts can bring administrative proceedings depends on the contents of such administrative acts issued.  Military officers are in a broad sense civil servants and have public law relationships with the State due to their official posts. Active service military officers who file petitions for remaining on active duty according to pertinent rules and whose petitions are rejected following orders of discharge, if they question the orders, may seek remedies by lodging administrative appeals and bringing administrative proceedings following the respective due procedures since the orders of discharge affect their military statuses and may result in violation of the constitutional guarantee of the right to perform public service.  The part of Supreme Administrative Court Precedent No. 11 (Pan-tze No. 11), Supreme Administrative Court of 1959, which is in contravention to this Interpretation, shall no longer be applicable.
      
  • Reasoning
    •        Article 16 of the Constitution guarantees the people the right to lodge administrative appeals and the right to bring legal action.  When the people’s rights or interests protected by law are infringed, their rights to lodge administrative appeals or to bring legal action following proper legal procedures cannot be limited simply because of their posts or occupations.  We have already stated in Interpretations Nos. 187, 243, 298, and 338 that whether civil servants who are subject to administrative acts due to their posts can bring administrative proceedings depends on the contents of the administrative acts issued.  If the administrative act will affect a civil servant’s status or his rights and interests thereof, he may exercise his abovementioned rights under Article 16 of the Constitution to seek remedies from the judicial branch.  Military officers have combat duties during wartime, and their duty of obedience cannot be equated to that of ordinary public officials.  However, since military officers are in a broad sense civil servants and have public law relationships with the State due to their official posts, except for the due exercise of rights of military command and for awards and discipline, their legal rights shall not differ from those of other civil servants.  Active service military officers who file petitions for remaining on active duty according to pertinent rules and whose petitions are rejected following orders of discharge, if they question the orders, may seek remedies by lodging administrative appeals and bringing administrative proceedings following the respective due procedures.  Supreme Administrative Court Precedent No. 11 (Pan-tze No. 11), Supreme Administrative Court of 1959, provides that, “Administrative appeals can be brought only when administrative acts issued by government branches are illegal or inappropriate so as to infringe upon people’s rights or interests.  As to administrative acts issued due to special authority relationships or due to disputes rising from private law relationships, there is no legal ground for administrative appeals.”  The foregoing is in contravention to this Interpretation and shall no longer be applicable. On April 17, 1996, the Judges Joint Committee of the Supreme Administrative Court’s Chief Judges made a resolution that those active service officers who file petitions for voluntary discharge or for remaining on active duty and whose petitions are rejected may follow the administrative procedure to seek remedies, because the rejections are adverse administrative acts and will affect their military statuses. Since the Supreme Administrative Court Precedent No. 11 (Pan-tze No. 11), Supreme Administrative Court of 1959, was cited by the final and binding judgment which gave rise to this Interpretation, it is noteworthy that we should review this petition accordingly.
      
    • *Translated by Professor Spenser Y. Hor.
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