The purpose of the right of people to assume public service prescribed under Article 18 of the Constitution is to protect the right of people to engage in public business by law, and to ensure the protection of their status, remuneration and retirement allowance and so forth derived wherefrom. Based on the right to assume public service under the Constitution, the office rank and remuneration level assessed by law and acquired by a public functionary are safeguarded by institutional protection. (See J.Y. Interpretations Nos. 575 and 483) However, the acquisition of rights of remuneration and assessment of ranking shall be premised on the acquisition of public functionary qualifications under the Public Functionaries Appointment Act.
The principle of equality prescribed under Article 7 of the Constitution does not mean a formal equality in an absolute and mechanical sense. Rather, it aims to guarantee the substantial equality of the people in the sense of equal protection under law. Based on the value system of the Constitution and the purpose of enactment, the agency in charge of course may weigh and consider the variations in the nature of subject matters and exercise reasonable, differential treatments (See J.Y. Interpretation No. 485). The administrators of different systems shall essentially apply different sets of rules regarding appointment, assessment of remuneration, evaluation of merit (service), and appraisement of service. Therefore, a person cannot directly exchange his or her originally assessed level of remuneration (salary) when transferring from one system to another. Based on the fairness of the personnel system, there is, thus, a design to assess the level of remuneration (See J.Y. Interpretation No. 501). According to Article 3 of the Act Governing the Employment of Contract-based Employees (hereinafter referred to as the Employment Act), the term ‘contract-based employee’ means the professional and technical personnel periodically employed by every agency through contract. The title, number of positions, term and remuneration shall be included in a detailed budget. They shall be displayed on a list, and the list shall be delivered to the Ministry of Civil Service for registration and reference. These employees are temporary personnel outside of the organic structure and receive remuneration by contract. Public functionary qualifications are not required for contract-based employment in which the levels of ranks and grades do not exist. There is no legal official or office title, and thus no assessment of level of remuneration, either. Since the contract-based employee does not have public functionary appointment qualifications (according to the provision especially prescribed in Article 6 of the Employment Act), the Public Functionaries Remuneration Act, Retirement Act, and the Act Governing the Payment of Compensation to Surviving Dependents of Public Functionaries will not apply, and he or she shall then have no reason to claim any public functionary rights of either remuneration or assessment of ranking. However, according to Article 15, Paragraphs 2 and 3 of the Enforcement Rules of 1995, (the purpose and intent of Paragraphs 2 and 3 of Article 15 of the Enforcement Rules are identical) the seniority accumulated during the time he or she was a contract-based employee may be assessed annually and counted into his or her public functionary seniority after he or she has been appointed by law and obtained actual appointment qualifications up to the highest level of seniority salary of his or her level ranking assessed and authorized if that seniority is equivalent to the proposedly assumed office and grade and both are similar in nature. Article 15, Paragraph 3 of the Enforcement Rules of 1999 states: In respect of a person appointed under the Public Functionaries Appointment Act, his or her public business seniority accumulated during the time he or she served in a position other than that mentioned in the preceding two paragraphs may be assessed and counted into his or her public functionary seniority up to the highest level of basic salary of his or her level ranking assessed and authorized if that seniority is equivalent to the currently assessed and authorized office and grade, both are similar in nature, and the record of service is outstanding.? In view of its intent and purpose, this provision is based on the spirit of the seniority salary system, highlighting the promotion of the seniority and merit of outstanding public functionaries, in order to encourage longer appointment. According to the former Article 7 of the Public Functionaries Merit Evaluation Act prior to its revision and amendment promulgated on June 20, 2001, only those whose level of evaluation is at rank A or at rank B for two consecutive years may have their seniority salary assessed and upgraded by one level. In respect of a formally appointed public functionary, the level of evaluation required for assessing and upgrading his or her seniority salary is stricter than that required for assessing and upgrading his or her basic salary. The evaluation systems for contract-based employees and formally appointed public functionaries are different. In respect of a contract-based employee, the effectiveness of his or her job performance is monitored only through evaluation within the duration of the employment contract as the basis for continuing or terminating the employment, and there is no evaluation regulation similar to that provided in the Public Functionaries Merit Evaluation Act. However, according to the provisions of the Enforcement Rules of 1995 and 1998, the level of remuneration of the public business seniority accumulated during the time a person was a contract-based employee may be assessed up to the highest level of seniority salary of the level ranking. This results in an unreasonable situation in which the seniority that has been assessed and authorized amounts to less than the seniority that has not been assessed and authorized. Therefore, in order to pursue the integrity of the civil servant appointment system of public functionaries and the equality of assessing and upgrading the seniority salary, the above amendment has been so revised. It exercises differential treatments with regard to the recognition and counting of the public business seniority and renders that the seniority assessed into ‘ the highest level of the seniority salary’ will not include all of the public business seniority for those serving without public functionary appointment qualifications. The seniority not including the public business seniority accumulated during the time a person served as a contract-based employee is a result of the adoption of different decision-making standards for each kind of evaluation with various degrees of strictness. This is not a capricious choice and is in conformity with the reasonable arrangement of the national civil servant system as a whole and the objective of maintaining the fairness of assessing and upgrading the seniority salary. Based on the consideration of public policy, it is hard to find that the agency in charge is capricious or unreasonable, and there is a reasonable connection with the achievement of the objective. Hence, the amendment does not contradict the intent and purpose of protecting equal rights under Article 7 of the Constitution.
It should not be expected that any administrative regulation could be permanently enforced. However, after the administrative regulation has been promulgated and enforced, the agency that enacts and promulgates the regulation shall also attend to the protection of the interests of the regulated persons while revising the same regulation under the legal proceedings. The agency revises the content of a regulation for the necessity of the public interest. If a person objectively engages in an activity in which the reliance apparently appears because he or she relies on the former regulation, and because of the revision of the regulation, he or she will suffer damage incurred from the rights obtained under the former regulation and the interests expected to be obtained under the former regulation, the agency in charge shall, aiming directly at the suffered damage from the above interests, adopt a reasonable remedial measure or enacting a reasonable transitory provision to mitigate the damage, so as to satisfy the intent and purpose of protecting the rights of the people under the Constitution. However, since not all of the interests of people expected to be obtained under the former regulation can be equally claimed the protection of reliance, decisions shall be made on the basis of factors such as the interests expected to be met, whether the material elements required by the old regulation have been satisfied, whether the elements which have not been satisfied can objectively and reasonably be expected to be realized, or there is a possibility for the elements to be realized after the party has made continuous subjective efforts. If the regulations, having been repealed or modified, have substantially violated the upper-level norms or the regulations (e.g., interpretative, discretionary administrative rules) are promulgated because a person who claims his or her interests have been injured utilizes unjust means or provides incorrect information, then his or her interests shall not deserve protection. (See J.Y. Interpretation No. 525 for intent and purpose)
The provision of Article 15, Para-graph 3, of the Enforcement Rules of 1999 stating that the seniority of a public functionary accumulated during the time he or she served as a contract-based employee which may be assessed annually up to the highest level of seniority salary of his or her level ranking may, based on the provisions of Article 15, Paragraphs 2 and 3 of the Enforcement Rules of 1995 and the Enforcement Rules of 1998, only be assessed up to the highest level of basic salary of his or her level ranking. If any person relying on the provisions of Article 15, Paragraphs 2 and 3 of the Enforcement Rules of 1995 and the Enforcement Rules of 1998 took the Higher Rank Public Functionaries Examination, passed the written exam, started to receive practical training prior to the revision of the Enforcement Rules of 1999, and expected that he or she could apply for and obtain the rights and interests of assessment of seniority after having acquired the public functionaries appointment qualifications and actually assumed the public functionary office based on the Enforcement Rules prior to their revision, then the protection of reliance based on his or her rights and interests could not be disregarded because the realization of the rights and interests could not be reasonably expected. However, if a person having acquired the public functionary appointment qualification took the examination after the Enforcement Rules of 1999 were revised, then it was no doubt that there was no possibility for him or her to claim protection of reliance based on his or her rights and interests.
To particularly protect the vested interests of the person who could reason-ably expected to have his or her rights and interests of seniority assessment based on the regulations prior to their revision, Article 19, Paragraphs 1 and 2 of the Enforcement Rules of 1999 stated: These Enforcement Rules will be enforced from the date of promulgation. The amended provisions of Articles 15 and 15-1 will be enforced from the date of January 15, 2000.? The enactment of these transitory provisions by means of designating an enforcement date rendered that the persons who have acquired the public functionary appointment qualification but are not yet eligible for the assessment might receive the assessment of the level of remuneration in time and some of the persons having taken and passed the public functionaries written examination, finished training during the transitory period and thus acquired the public functionary appointment qualification might also receive the assessment of the level of remuneration under the old provisions of the Enforcement Rules, so as to protect their rights and interests. Even though there was situation in which some persons who had passed the examination but had not yet completed their training could not jointly enjoy the interests of assessment of the level of remuneration because they had not timely acquired the public functionary appointment qualifications during the transitory period and the protection was not complete in terms of their rights and interests, to avoid the result that the objective pursued for ensuring the public interest was delay and unable to realize during the period the regulation was revised, and it was not proper that the transitory period was extended excessively, furthermore, the revision of the regulations was in essence a diminution of the effect of the affirmative action provisions of the ordinary civil servant system, considering the loss of interests of the person who has originally expected that he or she might have the level of remuneration assessed up to the highest level of seniority salary of his or her level ranking under the old regulation from the assessment of the level of remuneration that could only be fulfilled up to the highest level of the basic salary under the newly effective Enforcement Rules, and the public interest maintained by the agency in charge of establishing a fair and reasonable public functionary seniority salary system, it was reasonable that the transitory provisions of the newly effective Enforcement Rules particularly designated the date of January 15, 2000, as the enforcement date. This did not contradict either the principle of the protection of the reliance or the principle of equality.
The purpose of the above Enforce-ment Rules is to provide a public functionary with affirmative action to determine his or her public business seniority accumulated during the time before he or she received the public functionary appointment qualifications and to recognize and calculate that part of seniority into his or her public functionary seniority after he or she has been formally appointed by law. Since this action in essence does not restrict people’s property right, it does not contradict Article 23 of the Constitution.
*Translated by Ching p. Shih.