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  • Interpretation
  • No.529
  • Date
  • 2001/07/13
  • Issue
    • Shall all males born in the Kin-Ma area in 1975 be drafted after the abrogation of the Enforcement Regulations Governing the Males Eligible for Military Service to be Considered as Trained Class B Militiamen in the Kinmen-Matsu Region?
  • Holding
    •       When the Enforcement Regulations Governing the Males Eligible for Military Service to be Considered as Trained Class B Militiamen in the Kinmen-Matsu Region (hereinafter the “Enforcement Regulations”) were abrogated on November 7, 1992, due to the abolishment of the war zone government administration, the males of military service age in said area fulfilling the requirements of Article 2, Paragraph 1, Subparagraph 2, and Article 2, Paragraph 2, of the above Enforcement Regulations were still qualified as Trained Class B National Militiamen. According to the principle of legitimate expectation (Der Grundsatz des Vertrauenschutzes) (See J. Y. Interpretation No. 525), the rights of males who have not applied for such qualification shall not be otherwise affected thereby whether or not such males were above the age of eighteen at the time said Enforcement Regulations were abrogated. In abrogating said Enforcement Regulations, the competent authority shall take reasonable remedial measures or set up those provisions for the transition period so as not to affect the substantive legal status of such males acquired through laws and regulations. The statement, appearing in the Letters (81) Yan-yi-tze No. 7512 of the Ministry of National Defense dated November 5, 1992, Tai (81) Nei-yi-tze No. 8183830 of the Ministry of the Interior and Tai 85 Nei-tze No. 28784 of the Executive Yuan dated August 23, 1996, that all Kin-Ma area males born in 1975 shall be drafted regardless of whether they qualify as trained class B militiamen, shall no longer be applicable.
      
  • Reasoning
    •       After administrative laws and regulations come into force, the relevant authorities that enact laws and regulations shall protect the interest of trust of the people governed by said laws and regulations when duly amending or abrogating such laws and regulations. If such laws and regulations are abrogated or so revised due to the public interest, reasonable remedial measures or regulations for the transition period shall be established to mitigate the damage that may be incurred by the people in their trust of said laws and regulations in order to conform with the constitutional protection of civil rights, as stipulated in J. Y. Interpretation No. 525. In the event of any adverse affect on substantive legal status procured through trust in mandatory laws and regulations before their abrogation or amendment, persons holding such legal status unduly affected shall also be protected. 
      
    •       The period of mobilization to suppress strife came to an end on May 1, 1991, and subsequently the war zone government administration of the Kin-Ma area ended on November 7, 1992. As a result, the Enforcement Regulations Governing the Males Eligible for Military Service to be Considered as Trained Class B Militiamen in the Kinmen-Matsu Region enacted pursuant to Article 24 of the Act Governing the Enforcement of the Conscription Act (before its amendment on December 6, 2000) were abrogated, and the drafting practices of said area accordingly reverted to the legal norm in conformity with the Conscription Act. Originally, Kin-Ma area males of military service age fulfilling the requirements of Article 2, Paragraph 1, Subparagraph 2, and Article 2, Paragraph 2, of the Enforcement Regulations before its abrogation had the right to apply for qualification as Trained Class B National Militiamen upon satisfaction of all other requirements. However, upon abrogation of the Enforcement Regulations by the competent authority, those who had not yet applied for qualification forfeited their legal status therefor.  The trust in such legal status shall be protected. The competent authority abrogated the Enforcement Regulations and began drafting all males born in 1975 on January 1, 1993, affecting the legal status of such males regarding their type of military service, training period, service obligations, and whether they would be drafted in case of war.  As such, the competent authority shall take reasonable remedial measures or set forth regulations for the transition period to avoid affecting the substantive legal status of such males acquired through laws and regulations. The Letters (81) Yan-yi-tze No. 7512 of the Ministry of National Defense dated November 5, 1992, and Tai (81) Nei-yi-tze No. 8183830 of the Ministry of the Interior indicate that: “Main Text: Drafting in the Kinmen and Matsu areas starts January 1, 1993. Explanation: II. The subjects eligible for the draft in the Kinmen and Matsu areas will be males born in 1975 (and thereafter). Drafting procedures will be conducted in 1994, and service will commence in 1995.”  In the Executive Yuan’s reply letter Tai 85 Nei-tze No. 28784 dated August 23, 1996, to the Control Yuan, wherein it includes the part concerning the handling by the Ministry of National Defense and Ministry of the Interior in response to the Control Yuan’s investigative opinions in the matter of the “petition by males born in 1975 and 1976 in the Kin-Ma area for exemption from military service,” the section in Paragraph 3 regarding whether males born in 1975 can be qualified as Trained Class B Militiamen states, “Males born in the year of 1975 were at the time only seventeen years old, and therefore could not have qualified as Trained Class B Militiamen. Such males shall naturally be drafted in conformance with the Conscription Act since the above Enforcement Regulations have been abrogated.  There seems to be no problem with the retrospective effect of laws and regulations.”  In consideration of the protection of trust, the part stating that all Kin-Ma area males born in 1975 shall be drafted, regardless of whether they fulfill the requirements of Trained Class B Militiamen, shall no longer apply.  As to whether the case upon which this Interpretation is based fulfills the requirements of Article 2, Paragraph 1, Subparagraph 2, and Article 2, Paragraph 2, of the said Enforcement Regulations, which concern the requirements of undergoing military training or basic civil defense training (self-defense corps training) and providing services, the competent authority shall render a decision following due consideration of all pertinent information and investigative results, and administer the matter in accordance with this Interpretation.
      
    • *Translated by Professor Spenser Y. Hor.
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