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  • Interpretation
  • No.637
  • Date
  • 2008/02/22
  • Issue
    • Is Article 14-1 of the Public Functionary Service Act unconstitutional?
  • Holding
    •        The provision of Article 14-1 of the Public Functionary Service Act that “a public functionary may not take the office of a director, corporate auditor, manager, shareholder conducting the company business, or advisor of a business entity within three years after he leaves his post if the entity is directly or indirectly related with the duty which he performed during the five years prior to his departure from his government post” is intended to maintain, with a legitimate purpose, the important public interest in the qualities of fairness and integrity of public functionaries by imposing a restriction on the freedom of former public functionaries in choosing their employment. The restrictive measure taken by the legislature is materially related with the achievement of such purpose and is essential to the protection of such important public interest. It is not in conflict with the provision of Article 23 of the Constitution, nor is it contrary to the intention contemplated by the Constitution in protecting the right of work of the people.
  • Reasoning
    •        Article 15 of the Constitution provides that the people shall be guaranteed the right of work. That the people shall have the freedom to work and to choose an occupation has been repeatedly affirmed by us in J. Y. Interpretations Nos. 404, 510, 584, 612 and 634. There is between the State and a public functionary a relationship of official service under the public law, whereby the public functionary is accorded a right of protection of his status and is charged with special duty to the State. His rights protected by the Constitution are thus restrained to a reasonable extent. Our Interpretations Nos. 433, 596 and 618 provide adequate reference. While the official service relationship between a public functionary and the State under the public law is terminated after the public functionary leaves his employment with the government, the Constitution does not disallow the State to impose restrictions on his freedom to choose his employment by legally requiring him to perform special duties under certain circumstances to the extent consistent with the provision of Article 23 of the Constitution, for the purpose of protecting the important public interest of the State, with which the exercise of his official duty was closely related. 
      
    •        The provision of Article 14-1 of the Public Functionary Service Act that “a public functionary may not take the office of director, supervisor, manager, shareholder conducting the company business, or advisor of a for-profit business entity within three years after he leaves his post if the entity is directly or indirectly related with the duty which he performed during the last five years before he left his post” is intended to prevent a government official, after leaving his post, from skillfully securing personal benefit by virtue of his connection with the agency with which he worked before, or helping the business entities with which he works to engage in unfair competition by utilizing the information known to him because of his previous official duties. The provision also serves the purpose of preventing conflict of interest and transport of benefits by a public functionary during his employment by means of establishment of a close personal connection through collaboration with business entities for the purpose of making private pre-arrangement for his employment after he leaves his government post. The statute is aimed at maintaining the important public interest in the qualities of fairness and integrity of public functionaries and hence is proper. 
      
    •        In view of the difference in the nature of occupations, the Constitution allows different degrees of restrictions on the freedom to choose an occupation. In prescribing that public functionaries may not take specific positions within a certain period after they leave their official posts, the aforesaid provision is designed to help prevent situations involving conflict of interest or transport of benefits. Moreover, the restriction imposed by such provision on the freedom of public functionaries to choose their employment after they leave their official duties covers only specific types of positions rather than all posts with the business entities directly related with their official duties, nor does it prohibit them from freely choosing positions that are not directly related with their official duties. Furthermore, it is not impossible for a public functionary to foresee such restriction and therefore to make preparation in advance. Accordingly, the restriction imposed on their subjective qualifications in connection with their freedom of choice of employment protected by the Constitution is not excessive. Rather, it is materially related with the achievement of the purpose and is essential to the protection of important public interest. It is thus not in conflict with the provision of Article 23 of the Constitution, nor is it contrary to the intention contemplated by the Constitution in protecting the right of work of the people.
      
    •        We must point out incidentally that Article 14-1 of the Public Functionary Service Act is enacted by way of a legislation of employment prohibition, whereby anyone who violates the provision is punishable under Article 22-1, Paragraph 1, thereof with imprisonment for not more than two years and, in addition thereto, a fine of no more than NT$1,000,000 may be imposed. As this provision specifically concerns the right and interest of former public functionaries, it is appropriate that the law be reviewed and amended by the legislature by taking into consideration the result of actual enforcement thereof and implementing a well- designed system that provides a balance between the important public interest in maintaining the qualities of fairness and integrity of public functionaries and the freedom of the people to choose their careers. 
      
    • *Translated by Raymond T. Chu.
      
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