Go to Content Area :::

Decisions

Home > Decisions > Docket Search > Before 2022
:::
:::
  • Interpretation
  • No.464
  • Date
  • 1998/09/11
  • Issue
    • Does the categorization of “public service” under “The Precautionary Matters on Payment of Compensation to Those Who after Receipt of Pension or Living Subsidy Voluntarily Resume Public Service” promulgated by the Executive Yuan contradict the legislative purpose or constitutional guarantee of the people’s rights of existence and property?
  • Holding
    •        The stipulation under Article 27, Schedule Note 4(2)-5, of the Armed Forces Officers Service Act relating to the payment of pension has the purpose of avoiding double payment when retired officers who receive a pension (including other subsidies) also perform public services with pay, adding to the burden of the Treasury. The term “public functionaries” in the Schedule Note refers to those “performing public services with pay” without regard to the name of the title or size of the pay. The categorization of public service under “The Precautionary Matters on the Payment of Compensation to Those Who after Receipt of Pension or Living Subsidy Voluntarily Resume Public Service” promulgated and amended under letter (68) Tai-Jen-Cheng-Four No. 01379 dated January 19, 1979, of the Executive Yuan is a necessary supplementary provision to implement the rather ambiguous schedule of the abovementioned Act which does not contradict the legislative purpose or the constitutional guarantee of the people’s rights of existence and property.
  • Reasoning
    •        Ordinances, regulations or rules promulgated by the executive branch under delegation of the law or to implement the law should be consistent with the relevant provisions in the Constitution or law, as is stipulated under Article 172 of the Constitution and Article 27, Schedule Note 4(2)-5, of the Armed Forces Officers Service Act relating to the payment of pension in the event that the retired officer becomes a public functionary, to the effect that if the pay (including dependent allowances) is higher or equal in amount to the pension, the pension payment is suspended; if lower than the pension, only the differential is paid. The purpose of pensions is to provide for retired officers after their long service to the country, not to reward or subsidize them when they resume public service. It certainly does not permit duplication of pay from the public treasury. As to the meaning of “public functionaries” in the Schedule Note, reference to legislation relevant to the public functionaries retirement system reveals that, for example, in Article 12, Subparagraph 2, of the Public Functionaries Retirement Act and Article 13, Subparagraph 2, of the Act Governing the Retirement of School Teachers and Staff, it means “performing public service with pay, irrespective of the title or amount.” The Executive Yuan in letter (68) Tai-Jen-Chen-Four No. 01379 dated January 19, 1979, promulgated “The Precautionary Matters on the Payment of Compensation to Those Who after Receipt of Pension on Living Subsidy Voluntarily Resume Public Service” (then amended via letter [78] Tai-Jen-Four No. 09445 dated May 23, 1989, of the Executive Yuan, until repealed and replaced in letter [85] Tai-Jen- Cheng-Gai No. 45806 dated December 31, 1996, of the Executive Yuan, by “The Measure Relating to the Suspension of Pension Payment of Military Officers and Sergeants Who Assume Public Service”) which provides for six categories of public service: (1) representatives of the people; (2) political appointees; (3) regularly appointed teachers and other staff of government organizations, schools and colleges or state-owned enterprises; (4) temporarily appointed staff of government organizations, schools or colleges; (5) contractually appointed personnel of government organizations, schools, colleges or state-owned enterprises; and (6) general and evaluated, contractually appointed personnel of military units. This is a necessary supplementary provision by the competent authority to implement the rather ambiguous schedule for the abovementioned Act which does not contradict the legislative purpose or the constitutional guarantee of the people’s rights of existence and property. The provisions of Article 85 and Article 86, Subparagraph 1, of the Constitution are related to the selection, examination and qualification of public functionaries, not their definition. Furthermore, under Article 5, Paragraph 1, Subparagraph 2, of the Constitutional Interpretation Procedure Act, this Yuan can only review the constitutionality of the relevant laws or regulations applied by the finally adjudicated judgment, not the appropriateness of the laws or regulations applied by the court. Whether the petitioners are those who voluntarily resume public service is a question of fact for the court, and is not within the scope of Interpretation of this Yuan.  
      
    • *Translated by Professor S. M. Yu.
Back Top