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  • Interpretation
  • No.447
  • Date
  • 1998/02/27
  • Issue
    • Does the “monthly salary” referred to in Article 4, Paragraph 2, of the Act Governing the Pension of the Political Appointees include “other cash payment”?
  • Holding
    •        According to Article 4, Paragraph 2, of the Act Governing the Pension of the Political Appointees, the calculation of pensions for political officials is based on a monthly salary, whereas the monthly payment received by political officials according to the Provisional Act Governing the Salary and Allowance for the President, Vice-President and Special Political Appointees, includes a monthly salary and allowance. Article 8, Paragraph 1, of the Public Functionaries Retirement Act, provided, before the January 20, 1993 amendment, that monthly salary includes basic pay and other cash payment. It may be seen from the abovementioned retirement laws for public functionaries that monthly salary differs from basic pay. Monthly salary includes not only basic pay or monthly pay, but also other cash payment. It follows that the “monthly salary” used in calculating the pension of political officials should include not only monthly pay, but also “other cash payment.”
  • Reasoning
    •        Those political officials who participate in the government policy decision-making process and change with political parties or policies and those with defined terms of office under the Constitution or law to maintain independence in the exercise of their function are distinguishable. The fact that our prevailing law does not distinguish these two types of officials, though not uncontroversial in a constitutional sense, is not within the scope of this interpretation. Insofar as the relevant laws are not amended, they should be construed accordingly. 
      
    •        The calculation of pensions for political officials under prevailing law is provided under Article 4, Paragraph 2, of the Act Governing the Pension of Political Appointees, as amended and promulgated on December 11, 1985, “Lump sum pension for political officials is based on their last monthly salary and their own “cash payment in lieu of basic necessities” as one unit; every half-year service earns one unit; service lasting less than three years earns one extra unit; service less than one-half year counts as a half year; and the maximum credit is sixty-one units.” Thus the base is the monthly salary, and the salary received by political officials each month according to the Provisional Act Governing the Salary and Allowance for the President, Vice President and Special Political Appointees enacted and promulgated January 17, 1949, includes a monthly salary and allowance, although the prevailing law is not clear about whether the monthly salary, for the purpose of calculating pensions of political officials, includes a monthly salary and allowance. We took into account the legislative purpose of the relevant laws on the retirement and payment of recompense to surviving dependents of public functionaries when the abovementioned Act Governing Pensions of the Political Appointees was enacted and promulgated and arrived at an overall construction.     Insofar as the retirement of ordinary public functionaries is concerned, according to Article 6, Paragraph 2, of the Public Functionaries Retirement Act before its January 20, 1993 amendment, lump sum pension is based on their last monthly salary and their own “cash payment in lieu of basic necessities”; according to Article 17 of the Act Governing the Payment of Compensation to Surviving Dependents of Public Functionaries, before the implementation of the new retirement regulations on July 1, 1995, the same rules governing ordinary public functionaries also apply mutatis mutandis to the recompense for surviving dependents of political officials. It is apparent from the above that the criteria for the calculation of pension and recompense for surviving dependents of political officials run parallel to those of ordinary public functionaries under the old regulations. Taking into account the abovementioned Article 8, Paragraph 1, of the Public Functionaries Retirement Act, which provides, “monthly salary as provided in this Act includes basic pay and other cash payment,” it follows that, under the Public Functionaries Retirement Act, monthly salary is different from basic pay. Monthly salary includes basic or monthly pay, as well as other cash payment. Thus, for the purpose of calculating pensions of political officials, “monthly salary” includes monthly pay and “other cash payment.” However, the amount of pension relating to “other cash payment” should be governed by criteria under relevant law at the time of such political official’s retirement.
      
    • *Translated by Professor S. M. Yu.
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