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  • Interpretation
  • No.658
  • Date
  • 2009/04/10
  • Issue
    • Is Article 13, Paragraph 2 of the Enforcement Rules of Public Functionaries Retirement Act unconstitutional?
  • Holding
    •     Article 13, Paragraph 2 of the Enforcement Rules of Public Functionaries Retirement Act provides that the base amount or [salary] percentage to be used as pension radix concerning those reemployed as public servants after first retired or being laid off shall be capped at no more than the maximum standard provided under Articles 6 and 16-1, Paragraph 1 of the Public Functionaries Retirement Act when the calculation is to combine with the base amount or percentage from the previous retirement or lay-off. Such restriction lacks specific authorization by the law. The content of the provision is not to merely enforce the detailed and technical issues of the Public Functionaries Retirement Act. Rather it regulates such matters as the calculation and the ceiling of seniority for individuals reemployed as public servants, reserved [exclusively] to be dealt with by law. It further imposes restrictions on the reemployed public servants’ right to petition for pension not otherwise found in [any] law, and is, therefore, contradictory to the principle of statutory reservation under Article 23 of the Constitution and shall become ineffective in two years since the date of this Interpretation is issued.
  • Reasoning
    •     Article 18 of the Constitution provides that citizens shall have the right to engage in public services. Its purpose is to ensure citizens who engage in public service in accordance with the law the right to protect [their job] status, along with the entitlement of salary and pension derived from such services. The State is obligated to provide remuneration and pension to its civil servants to support their livelihood (see J. Y. Interpretation Nos. 575 and 605). Given that the seniority for retirement benefit is the basis to calculate the pension amount, for matters such as the start date of the seniority, the categories that may or may not be counted towards that seniority, how computation is to be made, the computation of seniority for individuals reemployed as civil servants after retirement, and the maximum seniority that may be counted, among other things, are the State’s concrete realization to fulfill its obligation to look after its employees, and can have significant, substantive impact on the content of civil servants’ claim for pension benefits. Furthermore, given that the scope of the relevant regulations is quite extensive, which can have a far-reaching impact on financial policies, the issues being addressed [by regulations] are critical matters concerning the realization of rights bestowed to public employees and public interests, and should be governed by the principle of statutory reservation, and must be stipulated only by law (see to J. Y. Interpretation Nos. 443 and 614). In the event the legislature authorizes the executive agency to promulgate supplemental regulations for the aforementioned matters concerning the calculation of pension and sonority, the purpose, content and scope of such authorization must be specific. For matters that are secondary, such as technical details on the enforcement of the statute, the governing agency may promulgate necessary regulations, but may not contradict the [governing] law or impose restrictions on the right of the public servants not otherwise found in the law (see J. Y. Interpretation Nos. 568, No.650 and No. 657).  
      
    •     The front portion of Article 6, Paragraph 2 of the Public Functionaries Retirement Act provides that “[t]he radix of one-time pension shall be the double amount of base salary for the equivalent level employees as of the effective day of retirement, with one and a half units being added to each year of services, and with maximum of no more than fifty-three units for thirty-five years of services.” The front portion of Article 6, Paragraph 3 further provides that “[t]he radix of monthly pension shall be the double amount of base salary of the equivalent level employees, with two percent of the radix provided for each year of services and with maximum of no more than seventy percent for thirty-five years of services.” The legislative purpose is to regulate the basis to calculate pension radix, and to limit the maximum units to no more than thirty-five years. However, these provisions do not explicitly regulate what type of employment seniority should be counted, and whether the seniority of reemployment as civil servants after retirement may be combined with the previous seniority. Article 16-1, Paragraph 1 of the same Act stipulates, “for civil servants having accrued seniority before and after the amendment to this Act becomes effective, their seniority calculation shall be combined; provided, however, that the maximum seniority before the effective day of the amendment shall be no more than thirty years in accordance with the original Act, and the seniority of civil services after the implementation of the amendment can be combined to the maximum of no more than thirty-five years. Seniority shall be determined with methods more favorable to the petitioner.” The legislative purpose is to coordinate with the pension system reform for public servants under Article 8 of the Act. While [the amended statute] allows the combined calculation of seniority before and after it becomes effective to tackle the issue of cross-over seniority accumulation, it did not specifically provide whether the seniority acquired from the previous retirement may be combined with the seniority from later retirement. Thus, the statute is vague on whether the scope of afore-cited Article 6, Paragraphs 2 and 3, as well as Article 16-1, Paragraph 1 of the Public Functionaries Retirement Act covers the situation where reemployed public servants may combine seniority with what was accumulated from previous retirement. Moreover, it cannot be interpreted, based upon the Public Functionaries Retirement Act as a whole, to infer that the legislators intend to authorize the governing agency to promulgate supplemental regulations on this issue.
      
    •     In addition, Article 13 of the Public Functionaries Retirement Act, as amended on November 2, 1959, provides: “Any individual who retires in accordance with this Act, reemployed as a civil servant, and should have already received a one-time, lump-sum pension, shall refund all such pension to the National Treasury. If such pension is monthly installment, the seniority from previous services shall not be counted toward the second retirement.” This provision was amended on January 24, 1979: “Any individual who retires in accordance with this Act is not required to refund pension already received in the event of reemployment as a civil servant. Seniority from previous employment shall not be counted toward the second retirement.” It has not been amended since. Thus, in the situation where individuals reemployed as public servants after first retired in accordance with the Public Functionaries Retirement Act, their seniority is calculated on compartmental basis and does not counted toward the seniority from the reemployment before [the second] retirement.
      
    •     The Enforcement Rules of Public Functionaries Retirement Act is promulgated under the general authorization of Article 17 of the Public Functionaries Retirement Act. Article 13, Paragraphs 1 of the Act stipulates: “For individuals who have already received pension benefits or severance pay and are reemployed or transferred as civil servants, the seniority towards the second retirement shall be counted from the month of the reemployment or transfer.” Paragraphs 2 states: “For individuals indicated in the previous paragraph retired the second time, the combined calculation of pension or severance payment radix or percentage with the previous radix or percentage shall not exceed the maximum amount set forth under Article 6 and Article 16, Paragraph 1 of the Act. No additional payment shall be made if pension or severance pay from previous retirement has already reached the maximum; if not, such payment shall not exceed the maximum.” That the second paragraph combines the seniority of services before the retirement with services before the second retirement and subject the combining result to the maximum limit of no more than thirty or thirty-five years is to maintain fairness of seniority computation. However, Article 13 of the Public Functionaries Retirement Act only regulates that seniority of the previous employment and reemployment shall be counted separately. In addition, none of Article 6, Paragraphs 2 and 3, as well as Article 16-1, Paragraphs 1 of the Public Functionaries Retirement Act can be served as the statutory authorization for Article 13, Paragraph 2 of the Enforcement Rules. Therefore, Article 13, Paragraph 2 of the Enforcement Rules lacks explicit statutory authorization. Furthermore, the content of the provision is not to merely enforce the detailed and technical issues of the Public Functionaries Retirement Act. Rather it regulates such matters as the calculation and the ceiling of seniority for individuals reemployed as public servants, reserved [exclusively] to be dealt with by law. It further imposes restrictions on the reemployed public servants’ right to petition for pension not otherwise found in [any] law, and is, therefore, contradictory to the principle of statutory reservation under Article 23 of the Constitution.
      
    •     To look after retired public servants, and to balance reasonable treatment between present and retired public servants, many factors must be taken into consideration in constructing the system of second retirement for reemployed public servants such as the categories and scope of seniority computation, whether previous seniority should be combined with or counted separately from reemployment, how to avoid the imbalance of pension benefits between reemployed and non-reemployed public servants with the same seniority, whether it is necessary to set the maximum seniority ceiling in light of fairness of retirement benefits and national fiscal policy considerations, among other things. All these require a significant amount of time for planning and be regulated based on statute or administrative regulation having explicit and specific statutory authorization. The related agencies shall review and amend the Public Functionaries Retirement Act and other relevant regulations, and promulgate appropriate regulations in accordance with the meaning and purpose of this Interpretation no later than two years since the date this Interpretation is issued. Article 13, Paragraph 2 of the Enforcement Rules of Public Functionaries Retirement Act shall become ineffective at that time in the event no amendment is made.   
      
    • Translated by Chin-Chin Cheng, J.D.
      
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