Go to Content Area :::

Constitutional Court R.O.C. (Taiwan) Logo

Home Sitemap 中文版
   

Decisions

Home > Decisions > Docket Search > Before 2022
:::
:::
  • Interpretation
  • No.455
  • Date
  • 1998/06/05
  • Issue
    • The interpretative letter of the Central Personnel Administration, Executive Yuan, states, "Drafted personnel on the basis of retaining position with suspended pay, upon honorary discharge from military service and restoration of their former civilian positions, shall have their years of military service accredited and combined with their previous civilian service in accordance with Law." Does said letter constitute discriminatory treatment toward a person who joins the public civilian service after military service, thus conflicting with the principle of equality so specified in Article 7 of the Constitution?
  • Holding
    •        The nation owes government employees the obligation of remuneration and pension to pay for their living expenses. A military serviceman is a kind of government employee and has the right to receive a pension or to have his creditable military service combined with creditable public civilian service in accordance with law. The adoption of creditable military service should not differ whether his service was voluntary or compulsory, or was served before or during public civilian service. Article 32, Paragraph 1, of the Act Governing Preferential Treatment to Military Soldiers and Their Dependents provides: "When a military reservist joins the public civilian service, his years of military service shall be taken into account in the calculation of creditable service." This provision is based on the abovementioned right in accordance with the constitutional principle of equal protection. The interpretative letter of the Central Personnel Administration, Executive Yuan, (63) Jui Si Tze 09646 dated May 11, 1974, states that: "drafted personnel on the basis of retaining position with suspended payment, when discharged from military service and restored to their former civilian positions, shall have their merit evaluations performed retroactively according to law, and have their military service accredited." The result of the interpretation is that people in compulsory military service can have such service accredited to their creditable public civilian service only when they serve in the military after joining the civil service. Such interpretation is contrary to the purpose of law as stated above. Such calculation of creditable service impacts materially on the right of government employees whose right should be protected. In accordance with Article 17, Paragraph 2, of the Constitutional Interpretation Procedure Act, we hereby notify the relevant agencies to implement, by law or through the joint decision of the Executive and Examination Yuans, within one year from the date of this Interpretation, the purpose of this Interpretation appropriately, as authorized under Article 32, Paragraph 2, of the abovementioned Act.
  • Reasoning
    •        The nation owes government employees the obligation of remuneration and pension to pay for their living expenses. A military serviceman is a kind of government employee and has the right to receive a pension or to have his creditable military service combined with his creditable public civilian service in accordance with law. The adoption of creditable military service should not differ whether his service was voluntary or compulsory, or was served before or during public civilian service. According to Article 20 of the Constitution, people have the obligation to serve in the military as provided by law. Soldiers in compulsory or voluntary military service may have different professional expertise or lengths of service, but their duty of loyalty and services provided are similar. Therefore, their legal right to a proper calculation of creditable service shall not be different. Article 32, Paragraph 1, of the Act Governing Preferential Treatment to Military Soldiers and Their Dependents provides "When a military reservist joins the public civilian service, his years of military service shall be taken into account in the calculation of creditable service." Under the definition of the same Act provided in Article 2, there is no distinction between compulsory or voluntary service in the meaning of "military reserve personnel," thus complying with the abovementioned constitutional principle of equal protection. The interpretative letter of the Central Personnel Administration, Executive Yuan, (63) Jui Si Tze 09646 dated May 11, 1974, states that: “drafted personnel on the basis of retaining position with suspended payment, when discharged from military service and restored to their former civilian position, shall have their merit evaluation performed retroactively according to law, and have their military service accredited." As a result of such interpretation, military service is accredited, for people in compulsory military service, only if such service starts after they join the public civilian service, but not prior to joining the public civilian service. This interpretation is contrary to the abovementioned purpose of law. The proper calculation of creditable service impacts materially on the rights of government employees, and should be protected. In accordance with Article 17, Paragraph 2, of the Constitutional Interpretation Procedure Act. We hereby notify the relevant agencies to implement, by law or through a joint decision of the Executive and Examination Yuans, within one year from the date of this Interpretation, the purpose of this Interpretation appropriately, as authorized under Article 32, Paragraph 2, of the abovementioned Act.  
      
    • *Translated by Professor S. M. Yu
Back Top