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  • Interpretation
  • No.510
  • Date
  • 2000/07/20
  • Issue
    • Does Article 25 of the Civil Aviation Act, which authorizes the competent authority to conduct periodic and special checks on the knowledge, technical skill, and physical fitness of flight personnel, constitute a restraint on the people*s right of work as guaranteed by Article 15 of the Constitution?
  • Holding
    •        Article 15 of the Constitution guarantees the people*s right of work. People have the freedom to work and to choose jobs. Nevertheless, work, which bears a close relation to the public interest, may be regulated by orders expressly authorized by law regarding ways, necessary qualifications or other conditions, with reference to the nature of the law and the limitations on the right of work, and within the limits of the principle of proportionality bestowed in Article 23 of the Constitution. Article 25 of the Civil Aviation Act, as amended on November 19, 1984, stipulates that flight personnel are subject to periodic and special checks by the Civil Aeronautics Administration (hereinafter referred to as the “CAA”) on knowledge, technical skill and physical fitness. Any flight personnel found to fall below standards in such checks is liable to restriction, suspension or termination of his /her professional work. The CAA is authorized to prescribe the abovementioned standards for checks (Article 25 of the Act, as amended on January 27, 1995, and Article 26 of the Act, as amended on January 21, 1998, provide the same standards). Accordingly, Article 48, Paragraph 1, of the Criteria for the Physical Examination of Flight Personnel, as amended and promulgated on August 26, 1993, provides that any flight personnel who do not meet the standards shall be considered to have failed. Yet, if according to a special inspection, the CAA finds that the performance of duties of the flight personnel relies on his/her experience, and does not affect flight safety, the failure may be exempted. Article 52 further provides, "To ensure flight safety, those who are exempted shall be limited in their working hours and duties. According to the limitation in the preceding paragraph, the flight personnel shall not carry out those missions which cannot be accomplished with such limitations (based on the failure to pass the checks)." In addition, Article 53 states, "Those who are exempted must be re-evaluated in at least three years. Aviation health examination doctors or superiors may request a checkup should they think circumstances have changed." All the above provisions are to ensure the public interest, and are based on the special working conditions of flight personnel. The restrictions are qualifications on the freedom to choose jobs, and they are not punitive measures. As such, they comply with the Interpretation aforementioned, and do not violate the people*s right of work guaranteed by the Constitution.
  • Reasoning
    •        Article 15 of the Constitution guarantees the people*s right of work. People have the freedom to work and to choose jobs. Nevertheless, work, which bears a close relation to the public interest, may be regulated by law within the limits of the principle of proportionality (Verhältnismäßigkeitsprinzip) bestowed in Article 23 of the Constitution. Moreover, it is impossible for a law to regulate every detail, and as far as the right to choose jobs is concerned, the law, by taking into account the nature of relevant professional activities, may authorize the competent authority, by means of administrative orders, to establish appropriate standards regarding the requirements such as knowledge, capability, age, and physical fitness for those engaged in a specified profession.
      
    •        Modern aircraft have become an important means of transportation. The structure of aircraft is sophisticated, the operation of which involves a significant degree of professional skills. In addition, the aircraft travels at high speed; thus, its safety bears a close relation to the public interest. Therefore, those who engage in air transport must receive substantial professional training, and their physical and mental health, as well as physical fitness, are also necessary requirements for the profession. Thus, Article 25 of the Civil Aviation Act, as amended on November 11, 1984, provides that, "(F)light personnel shall be subject to periodic and special checks by the CAA on knowledge, technical skill and physical fitness. Any flight personnel found to fall below the standards in such checks is liable to restriction, suspension or termination of his/her professional work." The CAA is authorized by the same Act to prescribe the standards for checks (Article 25 of the Act, as amended on January 27, 1995, and Article 26 of the Act, as amended on January 21, 1998, provide the same standards). Accordingly, Article 48, Paragraph 1, of the Criteria for the Physical Examination of Flight Personnel, as amended and promulgated on August 26, 1993, provides that flight personnel who do not meet the standards shall be considered to have failed. Yet, if according to a special checkup, the CAA finds that the flight personnel*s performance of duties is dependent upon his/her experience, and does not affect flight safety, the failure may be exempted. Article 52 further provides, "(T)o ensure flight safety, flight personnel who are exempted shall be restricted in his/her working hours and duties. According to the restrictions in the preceding paragraph, the flight personnel shall not carry out those missions which cannot be accomplished with such failure." In addition, Article 53 states, " (T)hose who are exempted shall be reevaluated in at least three years. Aviation health examination doctors or superiors may request special checkups should they think circumstances have changed." (Articles 49, 52, and 53 of the Criteria for the Physical Examination of Flight Personnel, amended on February 17, 2000, provide similar stipulations.) All the above provisions are based on the special working conditions of airmen. They are necessary physical fitness requirements for the performance of duties of flight personnel, and are regulations regarding the qualifications for those engaged in a specified profession. They are not punitive measures, and as such they comply with the Interpretation aforementioned, and do not violate the people*s right of work guaranteed by the Constitution.  
      
    • *Translated by Bernard Y. Kao.
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