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  • Interpretation
  • No.526
  • Date
  • 2001/06/01
  • Issue
    • Does the exclusion of the pre-reorganization creditable service of the employees of the Commission for Economic Planning and Development of the Executive Yuan and other similar cases from the application of the Regulations Regarding Supplementary Compensation for Government Employees and Teachers’ Pension and other Cash Benefits violate the constitutional principle of equality and protection of property right?
  • Holding
    •       The Regulations Regarding Supplementary Compensation for Government Employees and Teachers’ Pension and other Cash Benefits promulgated jointly by the Examination and Executive Yuans on October 17, 1995, is applicable to the supplementary compensation for pension of ordinary public functionaries and teachers. As regards the pre-reorganization employees of the Commission for Economic Planning and Development of the Executive Yuan, and other similar cases, their procedures for appointment and remuneration system are totally different from those of ordinary public functionaries. For this reason, the abovementioned Regulations are not applicable, except for the creditable service during the period of reorganization up to June 30, 1995, to such pre-reorganization employees. The Ministry of Civil Service Letter (85) Tai- Chung-Te (2) No. 1344172 dated August 15, 1996, states that only the creditable service during the period of reorganization from January 9, 1985, to June 30, 1995, of the employees of the Commission for Economic Planning and Development of the Executive Yuan is eligible for compensation under the abovementioned Regulations. The pre-reorganization creditable service, due to the receipt of pension differential during reorganization, and the fact that the content of the pension and dependent allowance unit and pension differential received are much higher than ordinary public functionaries, considering the overall balance and equity of government employees’ rights and interest, should not be eligible for compensation. Such statement is consistent with the purpose of the abovementioned Regulations, and the constitutional guarantee of property right.
  • Reasoning
    •       The following factors led to the joint promulgation by the Examination and Executive Yuans on October 17,1995, of the Regulations Regarding Supplementary Compensation for Government Employees and Teachers’ Pension and other Cash Benefits: the failure of the government to implement Article 8, Paragraph 2, of the pre-January 20, 1993 Public Functionaries Retirement Act to take into account other cash benefits in calculating pension; to coordinate with the new retirement system effective July 1, 1995, after the amendment of the Public Functionaries Retirement Act and the Act Governing the Payment of Compensation to Surviving Dependents of Public Functionaries; and to take into account the supplementary resolution of the Legislative Yuan while amending the Public Functionaries Retirement Act on December 29, 1992, requesting the competent authority nevertheless to pay public functionaries compensation for: other cash benefits “under Article 8, Paragraph 2, of the pre-amendment Public Functionaries Retirement Act as a policy compensation for the fact that “other cash benefit” had not been taken into account in earlier calculations of the pension unit content.
      
    •       Article 7 of the Constitution explicitly protects the right of equality of the people. However, such equality is not a formalistic, absolute or mechanical one, but a substantive protection, under the law, of level playing field for the people. Based on the constitutional value system and the legislative purpose, the promulgating authority of law or regulation may exercise discretion, depending on the nature of the matter regulated, properly categorized and treated accordingly. J. Y. Interpretation No. 485 has already rendered our opinion on the matter. The adoption of the Regulations Regarding Supplementary Compensation for Government Employees and Teachers’ Pension and other Cash Benefits is for a specific purpose, applicable only to the pension compensation of ordinary public functionaries and teachers. The pre-January 9, 1985, reorganization employees of the Commission for Economic Planning and Development of the Executive Yuan, being different from ordinary government administrative organization employees in their appointment procedures and remuneration system, have no such thing as “other cash benefits” under their lump-sum salary system. Furthermore, to the extent that their creditable service include pre-reorganization creditable service, such creditable service has been paid off through liquidated differential by the Sino-American Fund, the content of each pension unit being higher than that of ordinary public functionaries. Considering the overall balance and equity of government employees’ rights and interests, those pre-reorganization non-ordinary government employees mentioned above, except for the period from the reorganization to the June 30, 1995 implementation of the new retirement system, should not be eligible for the application of the abovementioned Regulations, consistent with the requirement of substantive equality. 
      
    •       As regards the payment of pension and other cash benefits compensation to the Commission of Economic Planning and Development of the Executive Yuan employees, the Ministry of Civil Service stated its position in letter (85) Tai-Chung- Te (2) No. 1344172 dated August 15, 1996, to the effect that only the creditable service during the period of reorganization from January 9, 1985, to June 30, 1995, is eligible for compensation under the abovementioned Measure. Pre-reorganization creditable service, due to the receipt of pension differential, the pension unit content and the pension differential received being well above those of ordinary government employees, is not eligible for compensation. Such statement, being a necessary supplementary provision, based on proper authority, to implement the somewhat ambiguous abovementioned Regulations, is consistent with the purpose of the original Regulations, and not contrary to the constitutional protection of the people’s property right.  
      
    • *Translated by Professor S.M. Yu.
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