Go to Content Area :::

Constitutional Court R.O.C. (Taiwan) Logo

Home Sitemap 中文版
   

Decisions

Home > Decisions > Docket Search > Before 2022
:::
:::
  • Interpretation
  • No.589
  • Date
  • 2005/01/28
  • Issue
    • Is Article 10 of the Act Governing the Recompense for the Discharge of Special Political Appointees, which does not provide that a special political appointee with a defined term of office shall have the alternative of monthly paid pension for discharge, in violation of the constitutional principle of legitimate expectation?
  • Holding
    •        The principle of rule of law is a basic principle of the Constitution and its purposes are to ensure the protection of the rights of people, the stability of the legal order and the compliance with the principle of legitimate expectation.  After the promulgation and implementation of an administrative regulation, if the authority that instituted or promulgated the regulation amends or repeals the regulation according to legal procedure, it should also take into account the protection of the legitimate expectation of the regulated party.  If the regulated party has apparently acted objectively in response to the facts constituting the legitimate reliance during the period of the implementation of the regulation, thus creating the basis of reliance, and the party has the benefit that is worthy of protection, the party should then be protected by the principle of legitimate expectation.  As for the method adopted to protect the benefit of legitimate reliance, i.e., whether it is by reducing or preventing damage to the party, or by refraining from influencing its legal position acquired under the law, it should be decided by assessing and balancing the factors of public interests such as the political purposes pursued by the change of legal order and financial ability of the state, and the weight of the legitimate reliance and the meaning and value of the basic regulation on which the legitimate reliance is based and so forth.  If the basic regulation on which the legitimate reliance is based has the effect of realizing the purpose of public interests through the protection of the legal position rather than protecting the mere legal position of private interests, the protection of legitimate reliance involved with the change of the basic regulation should be strengthened so as to prevent the party from damage, thus assuring the public purposes that the basic regulation is intended to realize.
      
    •        The Constitution provides for defined terms of offices for specific positions so as to preserve independence in the exercise of such officeholders’ functions.  The nature of such offices is different from that of those political appointees who assume and leave public office as the ruling political party alternates or the governmental policy changes.  Such provision is not only to secure the stability of the individual positions but, more importantly, by the defined term of office, to assure the purpose of the independence in the exercise of such officeholder’s functions under the law, thus manifesting the value of public interests.  Therefore, to achieve the function of the defined term of office, it is necessary to fully protect the legal position acquired and the legitimate expectation arising therefrom, and to prevent such officeholders from suffering damage and relieve them of any hesitation while exercising their functions independently.  Only then will it not deviate from the constitutional intent to provide for the defined term of office for the positions and satisfy the constitutional principle of legitimate expectation.
      
    •        Article 7-V of the Amendment to the Constitution provides: “The members of the Control Yuan shall be beyond party affiliation and independently exercise their powers and fulfill their duties in accordance with the law.”  To ensure the independence of exercising the control power and to bring the function of control power into full play, our Constitution provides expressly that the term of office for a member of the Control Yuan is defined as six years (See Article 93 of the Constitution and Article 7-II of the Amendments to the Constitution).  The term of office of the members of the 3rd Control Yuan is six years, from February 1, 1999, to January 31, 2005.  When the members of the Control Yuan began that term, there was no “sunset provision” for the Act Governing the Pensions of Special Political Officials as amended and promulgated on December 11, 1985.  In other words, when the members of the 3rd Control Yuan took office, they had a legitimate expectation that their term of office was guaranteed and that, upon expiry of their term of office, they would have the right of property under public law to claim the monthly paid pension for discharge in accordance with Article 4 of the said Act if they later served in a military, civil or teaching position and accumulated seniority to fifteen years.  However, the Act Governing the Recompense for the Discharge of Special Political Appointees (hereinafter the “Recompense Act”) was instituted and promulgated on January 7, 2004, and was put into force retroactively on the first date of the same month and year.  In accordance with the Recompense Act, the seniority of the special political appointees and general governmental employees is subject to separate systems and calculations at different levels and the pension for the retirement/discharge is calculated according to their respective rules and regulations, and, in addition, the recompense to the special political appointees can only be made in lump sum payment, not in monthly payment.  There is a transitional provision in Article 10 of the Recompense Act providing that the appointees who have served for more than fifteen years before the promulgation of the new Recompense Act can still claim the monthly paid pension in accordance with applicable acts governing pensions; however, there is no provision that the appointees with defined term of office for the purpose of ensuring the independence in the exercise of their function who have served their duty for fifteen years continuously, which is accumulated before and after the promulgation of the new Recompense Act, can file a claim for the monthly paid pension.  Therefore, it is clearly in violation of the said intent of the Constitution for lack of reasonable protection of their legitimate expectation.  The authorities concerned shall forthwith follow the purport of this interpretation to allow the said appointees to claim the monthly paid pension where their seniority has reached fifteen years accumulated legally by their military, civil, teaching and special political service before and after the implementation of the Recompense Act under the aforesaid Act Governing the Pensions of Special Political Officials, as well as the Act Governing the Pensions of Special Political Appointees as amended and promulgated on June 30, 1999, so that their legitimate expectation will be protected.
  • Reasoning
    •        Article 5-I (i) of the Constitutional Interpretation Procedure Act provides: “When a central or local government agency, in carrying out its function and duty, has questions about the meanings of a constitutional provision: or, when a government agency has a dispute with other agencies in the application of a constitutional provision; or, when a government agency has questions about the constitutionality of an act or regulation at issue,” the petitions for interpretation of the Constitution may be made.  The petitioner of this case, i.e., the Control Yuan, in dealing with the matters in respect of the discharge/retirement of special political appointees, has questions about the constitutionality of the application of the Act Governing the Recompense for the Discharge of Special Political Appointees promulgated on January 7, 2004, and put into force retroactively on the first date of the same month and year, and hence has applied for the interpretation by this Yuan.  The petition, in this Yuan*s view, conformed to the said provision and therefore should be accepted.
      
    •        The principle of rule of law is a basic principle of the Constitution and its purposes are to ensure the protection of the rights of people, the stability of legal order and the compliance with the principle of legitimate expectation.  After the promulgation and implementation of an administrative regulation, if the authority that instituted or promulgated the regulation amends or repeals the regulation according to legal procedure, it should also take into account the protection of the legitimate expectation of the regulated party.  Unless the regulation predetermines an effective term or the application of the regulation must be suspended due to change of circumstances, which does not give rise to any issue of legitimate expectation, the repeal of or amendment to a regulation for purposes of public interest that causes damages to the legal benefits arising out of people*s objective expression of reliance should be adopted by means of reasonable compensation or transitional provision to reduce the damage to or impact on the legal position acquired under the law.  Thus it would be consistent with the constitutional intent of balancing the public and private interests.  If the regulated party has apparently acted objectively in response to the facts constituting the legitimate reliance during the period of the implementation of the regulation, thus creating the basis of reliance, and the party has the benefit that is worthy of protection, the party should then be protected by the principle of legitimate expectation (See J. Y. Interpretation No. 525).  As for the method adopted to protect the benefit of legitimate reliance, i.e., whether it is by reducing or preventing damage to the party, or by refraining from influencing its legal position acquired under the law, it should be decided by assessing and balancing the factors of public interests such as the political purposes pursued by the change of legal order and financial ability of the state, and the weight of the legitimate reliance and the meaning and value of the basic regulation on which the legitimate reliance is based and so forth.  If the basic regulation on which the legitimate reliance is based has the effect of realizing the purpose of public interests through the protection of the legal position rather than protecting the mere legal position of private interests, the protection of legitimate reliance involved with the change of the basic regulation should be strengthened so as to prevent the party from damage, thus assuring the public purposes that the basic regulation is intended to realize.
      
    •        The Constitution provides for defined terms of offices for specific positions so as to preserve independence in the exercise of such officeholders’ functions.  The nature of such offices is different from that of those political appointees who assume and leave public office as the ruling political party alternates or the governmental policy changes.  Such provision is not only to secure the stability of the individual positions but, more importantly, by the defined term of office, to assure the purpose of the independence in the exercise of such officeholder’s functions under the law, thus manifesting the value of public interests.  Therefore, to achieve the function of the defined term of office, it is necessary to fully protect the legal position acquired and the legitimate expectation arising therefrom, and to prevent such officeholders from suffering damage and relieve them of any hesitation while exercising their functions independently.  Only then will it not deviate from the constitutional intent to provide for the defined term of office for the positions and satisfy the constitutional principle of legitimate expectation.
      
    •        Article 7-V of the Amendment to the Constitution provides: “The members of the Control Yuan shall be beyond party affiliation and independently exercise their powers and fulfill their duties in accordance with the law.”  To ensure the independence of exercising the control power and to bring the function of control power into full play, our Constitution provides expressly that the term of office for a member of the Control Yuan is defined as six years (See Article 93 of the Constitution and Article 7-II of the Amendments to the Constitution).  The term of office of the members of the 3rd Control Yuan is six years, from February 1, 1999, to January 31, 2005.  When the members of the Control Yuan began that term, there was no “sunset provision” for the Act Governing the Pensions of Special Political Officials as amended and promulgated on December 11, 1985 (hereinafter the “Old Pension Act”).  The provision that “this Act shall become void at the end of one year and six months from the promulgation of the amended provisions” was added when the title of the Act was changed into the Act Governing the Pensions of Special Political Appointees on June 30, 1999 (hereinafter the “New Pension Act”) (See Article 19-III of the New Pension Act).  In other words, when the members of the 3rd Control Yuan took office, they had a legitimate expectation that their term of office was guaranteed and that, upon expiry of their term of office, they would have the right of property under public law to claim the monthly paid pension for discharge in accordance with Article 4 of the Old Pension Act if they later served in a military, civil or teaching position and their seniority accumulated to fifteen years.  Having taken the office based on this reliance is an apparently objective act in response to the facts constituting the legitimate reliance and must therefore be protected by legitimate expectation.  However, the Act Governing the Pensions of Special Political Appointees was repealed and the Act Governing the Recompense for the Discharge of Special Political Appointees was instituted and promulgated on January 7, 2004, and was put into force retroactively on the first date of the same month and year.  Under the Recompense Act, the seniority of the special political appointees and general governmental employees is subject to separate systems and calculations at different levels and the pension for the retirement/discharge is calculated according to their respective rules and regulations; and, in addition, the recompense to the special political appointees can only be made in lump sum payment, not in monthly payment. (See Articles 4 and 9 of the Recompense Act)  Although Article 10 of the said Recompense Act provides that the rules of the New and Old Pension Acts shall apply to the seniority of service before December 31, 2003, the pension receivable and the pension-paying authority.  In other words, the appointees who have served for more than fifteen years before the promulgation of the new Recompense Act can still claim the monthly paid pension in accordance with the New and Old Pension Acts.  However, there is no provision that the appointees with defined term of office who have served for fifteen years continuously accumulated before and after the promulgation of the new Recompense Act can claim the monthly paid pension; that is, those who could originally claim the monthly paid pension of discharge in accordance with the Old and New Pension Acts.  Therefore, it is clearly in violation of the said intent of the Constitution for lack of reasonable protection of their legitimate expectation.
      
    •        Furthermore, according to Article 10-II of the Recompense Act, Article 8 of the Enforcement Rules of the Recompense Act and Directive B.T.E.T. No. 0932334207 dated July 19, 2004, of the Ministry of Civil Service, providing that “For a special political appointee taking office before or after the implementation of this Act,..…. whose seniority of service was less than fifteen years before December 31, 2003, and who has any military, civil and teaching seniority, then the seniority after January 1, 2004, can be in a way that will not claim the principal and interest of the public deposits and, based on the military, civil and teaching level, to compensate the pension fund according to the corresponding rate of the military, civil and teaching pension fund prior to the transfer, he or she can also choose to claim the monthly paid pension if the accumulated seniority of military, civil or teaching service reaches fifteen years and he or she is sixty years old or older.”  However, the monthly paid pension receivable under the aforesaid regulations is actually substantially less than the amount receivable based on the New and Old Pension Acts due to different bases of calculation (See Article 4-III of the Act Governing the Pensions of Special Political Officials as amended and promulgated on December 11, 1985; Article 4-III of the Act Governing the Pensions of Special Political Appointees as amended and promulgated on June 30, 1999; Article 6-III of the Public Functionaries Retirement Act as amended and promulgated on January 28, 1995; Article 5-III of the Act Governing the Retirement of School Teachers and Staff as amended and promulgated on January 12, 2000; and Article 25-I (ii) of the Act Governing the Service of Armed Forces Officers and Sergeants as amended and promulgated on June 5, 2002).  Therefore, under the aforesaid regulations and directive, the transitional provision of Article 10 of the new Recompense Act should not be considered as reasonable compensation to those appointees with the defined term of office who, while independently exercising their function, took office before the “sunset provision” was added to the Pension Act on June 30, 1999, and thus is inconsistent with the constitutional principle of legitimate expectation.  The authorities concerned shall forthwith follow the purport of this interpretation to allow the said appointees to claim monthly paid pension where their seniority reaches fifteen years accumulated legally by their military, civil, teaching and special political service before and after the implementation of the Recompense Act under the aforesaid Act Governing the Pensions of Special Political Officials, as well as the Act Governing the Pensions of Special Political Appointees, so that their legitimate expectation will be protected.
      
    • *Translated by Vincent C. Kuan.
Back Top