Go to Content Area :::

Decisions

Home > Decisions > Docket Search > Before 2022
:::
:::
  • Interpretation
  • No.547
  • Date
  • 2002/06/28
  • Issue
    • 1. Does Article 10 of the Chinese Herbal Doctor Certification Regulations requiring an overseas Chinese herbal doctor who has obtained the overseas Chinese herbal doctor examination certificate for passing the Chinese herbal doctor examination to take the make-up written examination instead of the interview when he or she returns to Taiwan to practice violate the work right guaranteed by Article 15 of the Constitution?
    • 2. Does Article 10 of the Chinese Herbal Doctor Certification Regulations exceed the scope of authorization granted by the Physician Act and the Specialist and Technician Examination Act by imposing additional restrictions prohibited under the Physician Act and the Specialist and Technician Examination Act, thus violating the equal protection principle under the Constitution?
  • Holding
    •       Article 86, Subparagraph 2, of the Constitution provides that a specialist or a technician who wants to practice his or her profession should obtain a license by passing the examination held by the Examination Yuan in accordance with the applicable law. Because physicians providing medical care affect not only the personal rights and interests of the patient but also affect the public interests in the health of the nationals, physicians should possess specialized medical knowledge and skills. Since physicians are medical specialists, they should obtain their medical licenses by passing the medical examination held by the Examination Yuan in accordance with the applicable law.  Promulgated on September 22, 1943, Article 1 of the Physician Act provides that a citizen of the Republic of China may become a physician by passing the medical examination. (This Article was amended on July 29, 1992, to provide that a citizen of the Republic of China may become a physician by passing the medical examination and obtaining a medical license in accordance with the same Act.) Physicians should be tested on their specialized medical knowledge and skills. The material items such as the qualification requirements for taking the medical examination have been prescribed in the Physician Act. The Physician Act has authorized the examination agency and the competent authority to enact supplementary regulations governing the detailed and technical matters of the medical examination. The qualification requirements of the medical examination for Chinese herbal doctor have also been specifically prescribed in the Physician Act. As for the examination subjects, methods, and procedures, the Examination Yuan and the Executive Yuan have been authorized to enact the Chinese Herbal Doctor Certification Regulations taking into consideration the specialty and the characteristics of traditional Chinese medicine. The Chinese Herbal Doctor Certification Regulations are consistent with the legislative intent of the Physician Act and the Specialist and Technician Examination Act, and are within the scope of the authorization granted to the Examination Yuan and the Executive Yuan.
      
    •       As amended on August 31, 1982, by the Examination Yuan and the Executive Yuan, Article 8, Paragraph 1, of the Chinese Herbal Doctor Certification Regulations states: “To qualify as a certified Chinese herbal doctor, the applicant must provide his or her credentials for review, and take the required interview or the on-site examination. But applicants who apply for the certification as a distinguished Chinese herbal doctor having been in practice for more than 5 years under Article 2, Subparagraph 3, of the said Regulations shall be given an interview. Article 2, Paragraph 2, of the said Regulations also provides that an overseas Chinese who is granted the interview after applying for the certification under the forgoing provision shall take the make-up written examination when he or she returns to Taiwan to practice.  To coordinate with the Specialist and Technician Examination Act promulgated on January 24, 1986, a new version of the Chinese Herbal Doctor Certification Regulations was subsequently enacted and promulgated on August 22, 1988, by the Examination Yuan and the Executive Yuan. Article 6 of the said Regulations provides that an applicant who applies for the certification will be given a written examination. Article 10 of the said Regulations also provides that an overseas Chinese who has obtained the overseas Chinese herbal doctor examination certificate for passing the Chinese herbal doctor examination, shall take the make-up written examination instead of the interview in accordance with Article 6 of the said Regulations when he or she returns to Taiwan to practice. In considering the totality of the relevant laws, the provision set forth in Article 10 of the said Regulations is merely a modification of the examination method prescribed in the said Regulations enacted by the Examination Yuan and the Executive Yuan under the authorization of the Physician Act and the Specialist and Technician Examination Act. The provision neither affects the validity of the overseas Chinese herbal doctor examination certificate and the overseas Chinese herbal doctor’s license nor exceeds the scope of authorization granted to the Examination Yuan and the Executive Yuan. The provision does not impose additional restrictions prohibited under the Physician Act and the Specialist and Technician Examination Act and is consistent with the legislative intent of the Constitution in protecting the rights and interests of the people. 
      
    •       In addition, the equal protection principle under the Constitution means equality in substance. In considering the necessity of the circumstances and the purpose of the certification, the examination agency and the competent authority may impose proper restrictions on relevant matters in accordance with the applicable law. Those overseas Chinese who apply for the Chinese herbal doctor certification but are not present for the interview held by the Examination Yuan in Taiwan will be able to obtain the overseas Chinese herbal doctor’s examination certificate and the overseas Chinese herbal doctor’s license if their credentials are approved upon review. The granting of the overseas Chinese herbal doctor examination certificate or the overseas Chinese herbal doctor’s license is an administrative act in nature. The validity of such certificate or license is subject to some jurisdictional limitations. Those overseas Chinese herbal doctors who do not take the interview or the written examination held by the Examination Yuan in Taiwan in compliance with the said Regulations may not claim that they have the rights to practice as certified Chinese herbal doctors in Taiwan like other applicants who take and pass the interview or the written examination. If an overseas Chinese herbal doctor were able to practice in Taiwan as a certified Chinese herbal doctor without taking and passing the required interview or the written examination, there would be a substantive inequality. Therefore, by providing two separate categories of rules in governing the overseas Chinese applicants and domestic applicants, the Chinese Herbal Doctor Certification Regulations do not violate the equal protection principle under the Constitution and are consistent with the prior Interpretations of this Yuan. In addition, the “interview” required by the Chinese Herbal Doctor Certification Regulations includes: (1) the written examination, or (2) the written or oral examination. While there are three different types of examination including the interview, written examination, and oral examination, these examinations are all effective methods for choosing the most qualified Chinese herbal doctors. The administration of these examinations will be reasonably objective and fair, and will neither deprive the applicants of their rights or interests nor adversely affect the standing of the applicants under the law. For those overseas Chinese who obtain the overseas Chinese herbal doctor’s certificate without taking or passing the interview or the written examination in Taiwan, their reliance interests are not protected under the law because they are not qualified to practice in Taiwan as certified Chinese herbal doctors. Thus, the new version of the Chinese Herbal Doctor Certification Regulations, effective on the third day of the promulgation pursuant to Article 13 of the Standard Act for the Law and Rules, does not violate the reliance interests principle.  
      
    •   Article 3, Paragraph 4, of the Physician Act, as amended on January 16, 2002, provides that an overseas Chinese who has been granted the overseas Chinese herbal doctor’s license, should obtain the Taiwan Chinese herbal doctor’s license by passing the Chinese herbal doctor examination held by the Examination Yuan in Taiwan no later than January, 1, 2005, before he or she returns to Taiwan to practice. The forgoing provision is amended as a transitional regulation to coordinate with the Specialist and Technician Examination Act amended on December 29, 1999, for the purpose of abolishing the certification system. The amended provision creates no restriction on the rights and interests already obtained by the overseas Chinese herbal doctors under the applicable law and the provision is also consistent with the legislative intent of the Constitution in protecting the rights and interests of the people.
      
  • Reasoning
    •       Article 86, Subparagraph 2, of the Constitution provides that a specialist or a technician who wants to practice his or her profession should obtain a license by passing the examination held by the Examination Yuan in accordance with the applicable law. Because physicians providing medical care affect not only the personal rights and interests of the patient but also affect the public interests in the health of the nationals, physicians should possess specialized medical knowledge and skills. Since physicians are medical specialists (See Article 2, Subparagraphs 3 and 4, of the Specialist and Technician Examination Act, promulgated on My 2, 1986; the same as Article 2, Subparagraphs 3 and 4, of said Act), they should obtain their medical licenses by passing the medical examination held by the Examination Yuan in accordance with the applicable law. Promulgated on September 22, 1943, Article 1 of the Physician Act provides that a citizen of the Republic of China may become a physician by passing the medical examination. (This Article was amended on July 29, 1992, to provide that a citizen of the Republic of China may become a physician by passing the medical examination and obtaining a medical license in accordance with this Act.) Physicians should be tested on their specialized medical knowledge and skills. The material items such as the qualification requirements for taking the medical examination have been prescribed in the Physician Act. Said Act has authorized the examination agency and the competent authority to enact supplementary regulations governing the detailed and technical matters of the medical examination. The qualification requirements of the medical examination for Chinese herbal doctor have also been specifically prescribed in said Act. As for the examination subjects, methods, and procedures, the Examination Yuan and the Executive Yuan have been authorized to enact the Chinese Herbal Doctor Certification Regulations taking into consideration the specialty and the characteristics of traditional Chinese medicine. The Chinese Herbal Doctor Certification Regulations are consistent with the legislative intent of the Physician Act and the Specialist and Technician Examination Act, and are within the scope of the authorization granted to the Examination Yuan and the Executive Yuan.
      
    •       As amended on August 31, 1982, by the Examination Yuan and the Executive Yuan, Article 8, Paragraph 1, of the Chinese Herbal Doctor Certification Regulations states: “To qualify as a certified Chinese herbal doctor, the applicant must provide his or her credentials for review, and take the required interview or on-site examination. But applicants who apply for the certification as a distinguished Chinese herbal doctor having practiced for more than 5 years, under Article 2, Subparagraph 3, of the said Regulations shall be given an interview. Paragraph 2, of said Article also provides that an overseas Chinese who is granted the interview after applying for the certification under the forgoing provision shall take the make-up interview when he or she returns to Taiwan to practice. The purpose of the government in enacting the forgoing provision at that time to allow an overseas Chinese applying for the certification to take the make-up interview when he or she returned to Taiwan to practice was to provide an opportunity for the overseas Chinese. For those overseas Chinese who apply for the overseas Chinese herbal doctor certification but are not present for the interview held by the Examination Yuan in Taiwan, they will be able to obtain the overseas Chinese herbal doctor examination certificate and the overseas Chinese herbal doctor’s license if their credentials are approved upon review. The granting of the overseas Chinese herbal doctor’s examination certificate or the overseas Chinese herbal doctor’s license is an administrative act in nature. The validity of such certificate or license is subject to some jurisdictional limitations. Such certificate or license is therefore distinguishable from that of other applicants who become certified Chinese herbal doctors by passing the interview. Since all domestic applicants can only obtain their certified Chinese herbal doctor status by passing the required interview, the provision was enacted to prevent inequality by prohibiting those overseas Chinese herbal doctors who have already obtained their overseas Chinese herbal doctor’s examination certificate and the overseas Chinese herbal doctor’s license from returning to Taiwan to practice without passing the required interview. To ensure the qualifications of Chinese herbal doctors and to safeguard the medical care provided by Chinese herbal doctors, the overseas Chinese herbal doctors cannot become certified Chinese herbal doctors by only submitting their credentials but are required in the forgoing provision to take the make-up interview in order to practice in Taiwan. This is evident from the No. 0903301834 letter dated August 16, 2001, from the Department of Examination and Selection to the Judicial Yuan.  Furthermore, the “interview” stated in Article 5 of the Chinese Herbal Doctor Interview Certification Regulations (promulgated on May 22, 1945, and abolished on December 27, 1957) included: (1) the written examination, or (2) the oral or on-site examination. Later, Article 4, Paragraph 1, of the Specialist and Technician Interview and On-Site Examination Certification Regulations (promulgated on December 27, 1957, and amended on July 11, 1966, and April 30, 1968, respectively, by the Examination Yuan) provided that the interview included: (1) the written examination, or (2) the written and oral examination. Article 4, Paragraph 2, of the said Regulations provides that the method of the on-site examination and the subjects of the interview will be decided by the Department of Examination and Selection. From the very beginning, the “interview” stated in the said Regulations included more than the oral examination. Promulgated on January 24, 1986, Article 1 of the Specialist and Technician Examination Act provides that a specialist or a technician who wants to practice his or her profession should obtain the qualification by passing the examination. Article 5 of the same Act provides that the examination required under this Act may take various forms such as the written examination, oral examination, test, on-site examination, review of a paper, review of an invention, review of the educational background, credentials or dissertations. Except for the written examination, the examination required under this Act shall combine two or more forms of examination. Thus the term “interview” was no longer used in the Specialist and Technician Examination Act. The original Specialist and Technician Interview and On-Site Examination Certification Regulations were abolished and replaced by the Specialist and Technician Written, Oral and On-Site Examination Certification Regulations on July 1, 1986.   To coordinate with the amendment to the abovementioned provisions, a new version of the Chinese Herbal Doctor Certification Regulations was subsequently enacted and promulgated on August 22, 1988, by the Examination Yuan and the Executive Yuan. Article 6 of the said Regulations provides that an applicant who applies for the certification will be given a written examination. Article 10 of the said Regulations (Article 8, Paragraph 2, of the previous Chinese Herbal Doctor Certification Regulations) also provides that an overseas Chinese who has obtained the overseas Chinese herbal doctor’s examination certificate for passing the Chinese herbal doctor examination, shall take the make-up written examination instead of the interview in accordance with Article 6 of the same Regulations when he or she returns to Taiwan to practice. In considering the totality of the relevant laws, the forgoing provision requiring an overseas Chinese herbal doctor to take the make-up written examination instead of the interview when he or she returns to Taiwan to practice is merely a modification of the examination method prescribed in the said Regulations enacted by the Examination Yuan and the Executive Yuan under the authorization of the Physician Act and the Specialist and Technician Examination Act. The provision neither affects the validity of the overseas Chinese herbal doctor’s examination certificate and the overseas Chinese herbal doctor’s license nor exceeds the scope of authorization granted to the Examination Yuan and the Executive Yuan.  The provision does not impose additional restrictions prohibited under the Physician Act and the Specialist and Technician Examination Act and is consistent with the legislative intent of the Constitution in protecting the rights and interests of the people. 
      
    •       In addition, the equal protection principle under the Constitution does not mean absolutely or mechanically equal in formality. The equal protection principle protects the equality in substance by protecting the equal standing of people under the law. In considering the necessity of the circumstances and the purpose of the examination, the examination agency and the competent authority may create reasonable classifications among people based on their differences in nature (See No. 485 of the Judicial Interpretation).  Those overseas Chinese who apply for the Chinese herbal doctor certification but are not present for the interview held by the Examination Yuan in Taiwan will be able to obtain the overseas Chinese herbal doctor’s examination certificate and the overseas Chinese herbal doctor’s license if their credentials are approved upon review. If those overseas Chinese did not take the interview before the new version of the Chinese Herbal Doctor Certification Regulations was promulgated or did not take the written examination after the new version of the said Regulations was promulgated, they may not claim that they have the right to practice as certified Chinese herbal doctors in Taiwan like other applicants who take and pass the interview or the written examination. If an overseas Chinese herbal doctor were able to practice in Taiwan as a certified Chinese herbal doctor without taking and passing the required interview or the written examination, there would be a substantive inequality. Thus, by providing two separate categories of rules in governing the overseas Chinese applicants and domestic applicants, the said Regulations achieve the goal of choosing the most qualified Chinese herbal doctors through a reasonably fair and objective method. The said Regulations therefore do not violate the equal protection principle under the Constitution and are consistent with the prior Interpretations of this Yuan. In addition, the “interview” required by the Chinese Herbal Doctor Certification Regulations includes: (1) the written examination, or (2) the written or oral examination. While there are three different types of examination including the interview, written examination, and oral examination, these examinations are all effective methods to choose the most qualified Chinese herbal doctors. The administration of these examinations will be reasonably objective and fair, and will neither deprive the rights and interests of the applicants nor adversely affect the standing of the applicants under the law.For those overseas Chinese who obtain the overseas Chinese herbal doctor’s certificate without taking or passing the interview or the written examination in Taiwan, their reliance interests are not protected under the law because they are not qualified to practice in Taiwan as certified Chinese herbal doctors. Thus, the new version of the Chinese Herbal Doctor Certification Regulations, effective on the third day of the promulgation pursuant to Article 13 of the Standard Act for the Law and Rules does not violate the reliance interests principle.  Article 3, Paragraph 4, of the Physician Act, as amended on January 16, 2002, provides that an overseas Chinese who has been granted the overseas Chinese herbal doctor’s license, should obtain the Taiwan Chinese herbal doctor’s license by passing the Chinese herbal doctor examination held by the Examination Yuan in Taiwan no later than January, 1, 2005, before he or she returns to Taiwan to practice. The forgoing provision is amended as a transitional regulation to coordinate with the Specialist and Technician Examination Act amended on December 29, 1999, for the purpose of abolishing the certification system. The amended provision creates no restriction on the rights and interests already obtained by the overseas Chinese herbal doctors under the applicable law and the provision is also consistent with the legislative intent of the Constitution in protecting the rights and interests of the people. 
      
    • *Translated by Li-Chih Lin, Esq., J.D.
Back Top