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  • Interpretation
  • No.459
  • Date
  • 1998/06/26
  • Issue
    • Does Interpretation Yuan-tze No.1850 which rules that a conscript or any of his family members who disagrees with the classification of the conscript*s physical condition made by the hsien (county) magistrate in charge of conscription shall not file an administrative appeal violate the constitutional protection of the people*s right to litigate?
  • Holding
    •        Classifications of the physical conditions of conscripts in connection with their military services are unilateral administrative acts of the conscription authorities. These administrative acts have direct legal effects on whether these conscripts will serve in the military and, if so, on the type of military services these conscripts will be subjected to. Such classifications have profound impacts on the rights of the conscripts and should be viewed as administrative decisions pursuant to the Administrative Appeal Act and Administrative Proceedings Act. In the event any of the conscripts who have been subjected to such classification considers that the classification is unlawful or improper, he is entitled to pursue an administrative appeal and administrative litigation. Interpretation Yuan-tze No. 1850 of the Judicial Yuan does not conform to the above principle and should no longer be cited as an authority, so that the constitutional right of citizens to litigate can be preserved. Article 69 of the Enforcement Act of Conscription Act - which provides that waiver of, prohibition from and delayed conscription or calling up for, military services shall first be determined and then redetermined by the competent authority - does not inhibit the right of citizens to litigate and does not contravene the Constitution. Anyone who disagrees with the redetermination is still entitled to pursue an administrative appeal and administrative litigation.
  • Reasoning
    •        Article 16 of the Constitution provides that citizens have the right to litigate and file administrative appeals, which right aims to protect the citizens from and provide them remedy for derogation of their rights by public administration through administrative appeals and procedures instituted under national laws, and to ensure that the administrative authorities which make administrative decisions or their superiors can self-rectify their illegal or improper decisions pursuant to the system of administrative appeals. Unilateral administrative acts of public authority by administrative authorities, to the extent they relate to particular public law matters which have legal effects, are not differentiated on the basis of the language or methodology used, of whether there are subsequent acts or of whether it is stated that an appeal against the acts may be launched. It would be inconsistent with the constitutional right of citizens to litigate and file administrative appeals if acts, which directly affect the rights and obligations of the citizens and which have effects in reality, are still considered non-administrative acts. The above is supported by Interpretation No. 423 of this Judicial Yuan.     
      
    •        Article 34 of the Conscription Act provides that: “conscripts who have been physically examined shall be classified into classes A, B, C, D and E; conscripts classified under classes A or B are considered suitable for immediate military services and should serve in the active and supplementary forces, with some of those remaining (after troop levels have been met) serving in Type A National Service and the rest serving in Type B National Service; conscripts classified under class C should serve in Type B National Service; conscripts classified under Class D are absolved of the obligation to serve in the military; and conscripts classified under class E are those hard to classify and will be subject to a supplemental physical examination to determine their classification.” For the above reasons, classifications on the physical conditions of conscripts are unilateral administrative acts of the conscription authorities. These administrative acts have direct legal effects on whether these conscripts will serve in the military and, if so, on the type of military services these conscripts will be subjected to. Such acts of classification, regardless of how they are named, have profound impacts on the rights of the conscripts and should be viewed as administrative decisions pursuant to the Administrative Appeal Act and Administrative Proceedings Act. In the event any of the conscripts who have been subjected to such classification considers that the classification is unlawful or improper, he is entitled to pursue an administrative appeal and administrative litigation. 
      
    •        Interpretation Yuan-tze No. 1850 of the Judicial Yuan, which ruled that "a conscript or any of his family members who disagrees with the classification of the conscripts made by the county chief shall not file an ordinary administrative appeal but shall find his remedy either pursuant to Articles 33 to 35 of the Army Conscription Provisional Regulations or through an appeal to the immediate superiors of those in charge of the conscription," should no longer be cited as an authority, as it is not in conformity with the above principle and so that the constitutional right of citizens to litigate can be preserved. Article 69 of the Enforcement Act of Conscription Act ─ which provides that waiver of, prohibition from and delayed conscription or calling up for, military services shall first be determined and then redetermined by the relevant authority ─ does not inhibit the right of citizens to litigate and does not contravene the Constitution. Anyone who disagrees with the redetermination is still entitled to pursue an administrative appeal and administrative litigation.  
      
    • *Translated by BAKER & McKENZIE.
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