The intent of Article 7 of the Constitution, which provides that all people of the Republic of China shall be equal under the law, is not one of absolute and mechanical equality in form. Rather, it is meant to guarantee people a substantially equal standing before the law. The legislative body, based on the value system of the Constitution and the legislative purpose, may rightfully give reasonably discriminatory treatments after considering the differences of the addressed subject areas. Article 153-I of the Constitution provides that “The State, in order to improve the livelihood of workers and farmers and to improve their productive skill, shall enact laws therefore and carry out policies for their protection.” As to the substance and methods of the protection, however, the legislators shall exercise certain discretion.
Article 15 of the Constitution provides that people*s property right shall be guaranteed. The intent thereof is to ensure that an individual may freely exercise the rights and powers to use, derive benefits from, and dispose of any and all of his or her properties depending upon the existing status of such properties, so as to secure the resources of life on which the survival of individuals and the free development of characters rely. However, to distribute resources reasonably, the State can restrict people*s property rights by law to such extent as not to violate the principle of proportionality set forth in Article 23 of the Constitution.
The people*s right of claims under private law falls within the scope of property right guaranteed under Article 15 of the Constitution. The State, in order to protect the rights of a creditor in private law, has established the civil compulsory enforcement system under which a creditor holding the enforcement title may apply to the enforcement court to use compulsory means to exercise the rights of the creditor by using enforcement against his or her debtors* assets. Although debtors have the obligation to endure the force of the State during the enforcement, the legislators still may balance the realization of creditors* rights in private law and the necessity to protect debtors* subsistence and then, to the extent that Articles 7 and 23 of the Constitution are not violated, enact certain legislation to prohibit the enforcement against a certain part of the debtors* assets so as to protect the right of existence set forth in Article 15 of the Constitution and other fundamental rights. Articles 52 and 53 of the Compulsory Enforcement Act prohibit the attachment of debtors* and their domestic relatives* necessities (e.g., food, fuel, money and other items which are essential for livelihood) for a period of two months; furthermore, Article 122 of the same Act prohibits the enforcement of the payment of the debts owed to the debtors by third parties so long as the same are necessary to maintain the livelihood of the debtors and their domestic relatives; and, Article 338 of the Civil Code prohibits the debtors from offsetting the debts which are not subject to attachment. The aforesaid provisions, while restricting the realization of creditors’ rights, do not violate the constitutional principle of proportionality in that they are necessary to guarantee the rights of existence of the debtors and their domestic relatives. As to the scope of debtors* assets not subject to enforcement, it is not limited to what is provided for in the above-mentioned provisions of the Compulsory Enforcement Act. Where the legislators decide that it would be in line with the constitutional intent to protect a specific category of people or other social policy considerations without violating the constitutional principle of proportionality, they may still enact laws to forbid the enforcement against the assets of certain debtors.
The right of workers to claim their retirement pensions is the right of claims in private law and falls within the confines of property right protected by the Constitution as well. Article 294 of the Civil Code provides that the right of claims that cannot be transferred according to their nature, or are prohibited from being attached, cannot be transferred in essence. Unlike the right of workers to claim compensation for occupational hazards that shall not be subject to transfer, offset, attachment, or security, as expressly prescribed (See Article 61 thereof), there is no similar provision in the Labor Standards Act dealing with the right of workers to claim their retirement pensions so that retired workers can enjoy the power of free disposition in accordance with the existing status of the right, or may transfer or use the same as security for their debts. Employers or creditors can also offset or petition the court according to the law for the attachment of the right to claim retirement pensions against workers so as to satisfy the credits. If the legislators, in addition to prohibiting the workers* retirement reserve funds allocated and contributed monthly by employers and deposited in a specially designated account from being the objects of transfer, attachment, offset or security under Article 56-I of the Labor Standards Act, also prohibit the workers* right to claim protection of retirement pensions from transfer, attachment, offset or security, it will be considered as a form of protection for the retirement of workers (in the former case), but will also be a restriction on the workers to exercise the right of “claiming the retirement pensions” (in the latter). And, to employers or other creditors, it stands to prevent the realization of the right of claims in private law, thus restricting their constitutionally protected property right. Since it involves restrictions on employers and other creditors, the issue of whether workers should have the right to claim protection of retirement pensions from transfer, offset, attachment or security, should be determined by the legislators after taking into account the objective social and economic situations and balancing the protection of retired workers* livelihood and the restrictions of the property rights against the workers, employers and other creditors.
Article 18 of the Constitution provides that the people shall have the right to hold public office, which is meant to ensure that the people who are engaged in official affairs, pursuant to the laws and regulations, shall also be entitled to the consequential right to secure such status, to request remuneration and retirement pensions, etc. (See J. Y. Interpretation No. 575). Article 83 of the Constitution and the 6th Amendment to the Constitution provide for the establishment of the governmental authority in charge of the affairs relating to public functionaries’ retirement, with the intent to enact laws to ensure the livelihood of retired public officials (See the Reasoning of J. Y. Interpretation No.280). The State is a public legal entity whose intentions shall be expressed and acts be practiced by public officials of the governmental authorities. Official duties exist between public officials and the State under public law whereby the State has the obligations of paying salaries, retirement pensions to public officials and to ensure the officials’ livelihood, and public officials owe the State a fiduciary duty and a duty to perform their public functions, etc. (See the Reasoning of J. Y. Interpretation No.433). However, employment relationships are based on the people’s freedom to enter into contracts. Workers provide employers with services to do specific work and, in return, the employers pay the workers salaries or wages. The nature of such relationship concerns rights and obligations in private law. Nevertheless, under Article 153 of the Constitution, which makes the protection of workers a fundamental national policy, the State is allowed to be involved in the employment relationships through legislation, demanding that employers assist in the protection of the livelihood of retired workers. Therefore, the type of work and the rights and obligations of public officials and workers are different, and the methods utilized by the State to protect the livelihood of retired workers and that of public officials should not necessarily be the same. The provisions concerning the “retirement pensions” set forth in the Public Functionaries Retirement Act and the Government Employees and Teachers Insurance Act are so enacted by the State as to provide constitutional protection for the livelihood of retired public officials. The provisions contained in Chapter 6 (Retirement) of the Labor Standards Act and in Section 6, Chapter 4 (Old Age Benefits), of the Labor Insurance Act are so prescribed by the State as to protect the livelihood of retired workers. In order to decide whether the different treatments violate the constitutional principle of equality, it is important to examine without prejudgment the type of work, the rights and obligations concerned and the various measures of protection for the public officials and workers on the whole. For instance, Article 3 of the Provisional Act for Senior Citizens’ Welfare Living Allowances provides that the public officials who have received monthly retirement pensions or lump-sum retirement pensions after retirement shall not claim the senior citizens’ welfare living allowances (See Subparagraph 2, Paragraph I, of the same Article). It is so provided because the legislators have tried to balance the necessity of protection of the livelihood of public officials and workers after their retirement and designed a reasonable distribution of the national resources so as to comply with the fundamental national policy of protecting workers and to ensure the implementation of the constitutional intent to protect the people’s right of existence.
Article 14 of the Public Functionaries Retirement Act provides, “The right to claim retirement pensions shall not be subject to attachment, transfer or security.” Although the said provision restricts the exercise of property rights of public officials and their creditors, the purpose thereof is to implement the intent of the Constitution to ensure the livelihood of public officials and to balance it with the restrictions against the public officials and their creditors on the exercise of their rights relating to the retirement pensions. The Labor Standards Act, unlike the Public Functionaries Retirement Act, fails to provide that the right to claim retirement pensions shall not be attached, transferred or secured. This different treatment, however, results not only from the legislators’ deliberation of the different natures and rights and obligations between public functionaries and workers, but also from such considerations as the influence of the restrictions on the right of public officials to allow the retirement pensions to be used as the objects of attachment, transfer or security over the public officials and their creditors, and the influence of the restriction on the exercise of the right of workers to allow the retirement pensions to be used as the objects of attachment, transfer or security over the workers, employers or other creditors. The conflicts of interests that should be addressed while designing the two systems concerned are not exactly the same. Based on its discretionary power over the retirement systems for public officials and workers, the legislative body, after taking into account the objective social and economic situations, has made different choices and devised different designs. Therefore, it is not sufficient to say that the constitutional intent of Article 153 of the Constitution to protect workers, as well as the principle of equality embodied under Article 7 of the Constitution, are violated for lack of sufficient protection of the livelihood of retired workers simply because different treatments exist where there is a provision in the Public Functionaries Retirement Act that prohibits the right of public officials to claim retirement pensions from being attached, transferred or secured, but there is no such provision in the Labor Standards Act.
Article 29 of the Labor Pension Act as promulgated on June 30, 2004, provides that labor retirement pensions and the right to claim retirement pensions shall not be transferred, attached, offset or secured. The said provision was formulated by the legislators after considering the current social and economic situations that are different from the situations when the Labor Standards Act was enacted, which falls within the scope of legislative discretion and thus does not conflict with the principle of equality. In their own best interests, workers may choose between the system under the Labor Pension Act and that under the Labor Standards Act (See Article 8 of the Labor Pension Act). As an additional note, it should be pointed out that the issue of whether the provision (that the right of workers to claim retirement pensions shall not be transferred, attached, offset or secured) should be added to the existing workers’ retirement system under the Labor Standards Act still falls within the scope of legislative discretion.
*Translated by Vincent C. Kuan.