Article 15, Paragraph 2 of the Enforcement Rules of the Professionals and Technologists Examinations Act, as amended on July 23, 2001, stipulates: “Where, in the preceding paragraph, the successful examinees are determined by using a total average score of not less than sixty or by a specific percentage of the total number of actual examinees in each category, if a candidate’s score in any one of the examination subjects is zero, or if his or her average score in the professional subjects is less than fifty, or if any score in a specific subject fails to meet the minimum requirement, that candidate shall be deemed to have failed the examination..” (The same text appears in Article 10, Paragraph 2 of the current Enforcement Rules, as amended on May 14, 2008.) Article 3, Paragraph 1 of the Final Score Calculation Rules of the Professionals and Technologists Examinations states: “An examinee passes a professionals and technologists examination if his or her final score is more than or equal to 60 points…. However, an examinee does not pass the examination if he or she scores zero points for any subject, has an average score of less than 50 points for professional subjects, or does not meet the minimum score requirements for specific subjects….” Article 9, Paragraph 3 of the Examination Rules of the Professional and Technical Special Examination for Doctors of Chinese Medicine, as amended on July 25, 2001, states: “Any examinee who scores zero points for any subject, has an average score of less than 50 points for professional subjects, scores less than 55 points for the subject of internal medicine, or scores less than 45 points for any of the other subjects tested, does not pass the exam…” The rules set out above are consistent with the principles of statutory reservation and proportionality under Article 23 of the Constitution, as well as the right of equal protection under Article 7 of the Constitution. These rules are also consistent with the protection of people’s right to work under Article 15 of the Constitution and the protection of people’s right to take examinations under Article 18 of the Constitution.

    The people’s right to work, as protected by Article 15 of the Constitution, entails the freedom to choose and to pursue an occupation. Whether particular restrictions on the freedom to choose and to pursue an occupation imposed by a statute or a regulation explicitly authorized by a statute are constitutional is a question governed by several standards of review on the basis of their contents. Article 86, Paragraph 2 of the Constitution states that the qualifications for professional occupations shall be determined on the basis of examinations administered by the Examination Yuan. Thus the people’s freedom to choose professional occupations is restricted by the Constitution itself. The right to take examinations under Article 18 of the Constitution not only guarantees the people’s right to take examinations to become qualified to serve as civil servants, but also guarantees the people’s right to take examinations to obtain license to work as professionals or technicians, which is consistent with the Constitution’s protection of the people’s right to work. In order to realize the protection of people’s right to take examinations under the Constitution, the state is obliged to establish an objective and fair examination system and to ensure the fairness of the examination results. Should any regulation on the qualification to take examinations or the method of examinations constitute a limitation on the people’s right to take examinations or the people’s right to work, the regulation should not be inconsistent with the constitutional principles of statutory reservation, equal protection, and proportionality. However, adequate deference should be given to the Examination Yuan, as the Constitution establishes the Examination Yuan and requires the Examiners, appointed by the President with the consent of the Legislative Yuan, to exercise independently the power to design and hold examinations to ensure a fair and objective examination system. Fairness in qualification examinations for professionals and technicians requires that all individuals who pass the examinations possess the necessary knowledge and abilities. As a result, if the regulations promulgated by the Examination Yuan with regard to qualifications to take examinations or methods of examination involve professional judgment about examinations, the regulations should be given adequate deference so as to conform to the constitutional spirit of the “separation and coordination of five powers.”

    Article 1 of the Physicians Act states that nationals of the Republic of China who pass the physicians’ examination and receive the certificate of physician license accordingly may practice as physicians.  Article 2 of the Professionals and Technologists Examinations Act defines professionals and technologists as persons who are eligible to practice their professions only after passing examinations and obtaining certificates in accordance with laws and regulations. Through Article 1 of the Physicians Act, the Legislative Yuan classifies doctors of Chinese Medicine as professionals, who must obtain certificates of physician license in accordance with relevant statutes and regulations. (see J.Y. Interpretation No. 547).  Article 15 of the Professionals and Technologists Examinations Act stipulates: “Regulations governing the different Special Examination for Professionals and Technologists shall be submitted by the Ministry of Examination to the Examination Yuan for approval (Paragraph 1).  The examination regulations referred to in the preceding paragraph shall cover the grades and levels of examinations, as well as the qualifications for the different examination categories and the required examination subjects (Paragraph 2).” Article 19 of the Professionals and Technologists Examinations Act consists of three paragraphs. Paragraph 1 states: “with due regard to the different grades or categories of examinations, successful examinees in the Professionals and Technologists Examinations may be determined by their having passed each test subject, or by their achieving a total average score of not less than 60, or by a specific percentage of the total number of actual examination candidates in each category.” Paragraph 2 states: “the specific method of determining examination qualifiers with regard to the above shall be submitted by the Ministry of Examination to the Examination Yuan for approval.” Paragraph 3 states Regulations governing the calculation of total scores for Professionals and Technologists Examinations shall be submitted by the Ministry of Examination to the Examination Yuan for approval.. The test subjects and the standard used to determine who passes the Professionals and Technologists Examinations concern whether particular individuals may obtain licenses to work as professionals or technologists; thus, they constitute limitations on the people’s right to work and right to take examinations. However, the test subjects and the standard used to determine who passes the examinations involve professional judgment about examinations. As they involve professional judgment about examinations, not only may the Legislative Yuan legislate on such matters; the Examination Yuan may also promulgate administrative regulations on the basis of statutory authorization.  In addition to setting out the three standards that may be used to determine who passes the examinations, i.e., “achieving a score of 60 points on each and every test subjects,” ”achieving an average score of 60 points for all test subjects,” and “achieving an average score better than a set percentage of all examinees,” the Professionals and Technologists Examinations Act explicitly authorizes the Examination Yuan to, in accordance with its jurisdiction and professional judgment, promulgate supplemental regulations for all professionals and technologists examinations with regard to the methods used to determine who passes these examinations, the rules that govern these examinations (including those related to the level and classification of examinations, the qualifications required to take examinations, and the test subjects), and the calculation of examination scores. The legislative intent is to authorize the Examination Yuan to exercise its professional judgment to determine, for various examinations, the appropriate standards of passing by which the state may ensure that all examinees who pass examinations possess the necessary knowledge and abilities. With the statutory authorization set out above, Article 15, Paragraph 2 of the Enforcement Rules of the Professionals and Technologists Examinations Act, as amended on July 23, 2001 by the Examination Yuan, states: “For those whose total score has reached 60 points for qualification, … if any tested subject of the examinations should be zero point, the average score of the professional subjects is less than 50 points, or the score of specially designated subject(s) does not meet the minimum requirement, they shall all be deemed to be not qualified.” (The same text also appears in Article 10, Paragraph 2 of the current Enforcement Rules, as amended on May 14, 2008.) Article 3, Paragraph 1 of the General Score Calculation Rules of the Professionals and Technologists Examinations states: “… Among those qualified who have reached the general score of 60 points, … as long as there is a zero point on any tested subject, or the average score of the professional subjects is less than 50 points, or the score of specially designated subject(s) does not meet the minimum requirement, they shall all be disqualified….” Article 9, Paragraph 3 of the Rules of the Professionals and Technologists and Traditional Chinese Medicine Doctor Examination, as amended on July 25, 2001, states: “For the score on any of the test subject that is zero point or professional subjects that is less than 50 points in average, or the internal medicine of the Traditional Chinese Medicine that is less than 55 points, or any of the other professional subjects that is less than 45 points, they shall all be disqualified.” (All these provisions are referred to hereinafter as “disputed provisions.”) The disputed provisions, requiring that a successful examinee may not obtain zero points for any subjects, that a successful examinee’s average score be no less than 50 points, and that a successful examinee’s score for specific subjects should meet minimum requirements, provide more specific contents to the more general standard that “anyone who achieves an overall score of 60 points passes the examination” as applied in the Special Examination for Doctors of Chinese Medicine. Therefore, the disputed provisions do not violate the principle of statutory reservation under Article 23 of the Constitution.

    Many patients in this country rely on doctors of Chinese medicine. As decades ago few formal schools of Chinese medicine existed, for the purpose of selecting qualified Chinese medicine doctors to meet the needs of the society, the Examination Yuan, authorized by the Examinations Act at the time, promulgated the Rules on Special Examination for Doctors of Chinese Medicine on February 23, 1962; the Measures on the Qualification Screening Examination for Doctors of Chinese Medicine on March 23 of the same year; and the Rules on the Initial Qualifying Examination for Doctors of Chinese Medicine on April 2, 1968. Pursuant to these regulations, examinees with various educational backgrounds and experiences could take three different kinds of examinations: Special Examinations, Certification Examinations, and Preliminary Qualification Examinations. Only those who pass the Special Examination or Certification Examination are qualified to practice as doctors of Chinese medicine. Later, as the society changed, more universities and independent colleges began to educate doctors of Chinese medicine, which is a result of the Legislative Yuan’s policy decision, but the Legislative Yuan still enacted Article 3, Section 3 of the Physicians Act to allow those who pass the Initial Qualifying Examinations to take the Special Examination. As such a rule allows the individuals who do not possess an academic degree from a department of Chinese medicine but take courses required for Chinese medicine or obtain a degree in Chinese medicine to take examinations to become licensed to practice Chinese medicine, Article 3, Section 3 of the Physicians Act is consistent with the protection of the people’s right to take examinations under Article 18 of the Constitution. Pursuant to Article 3, Section 3 of the Physicians Act, the Examination Yuan holds two kinds of examinations for doctors of Chinese medicine. Examinees who have already received formal education in Chinese medicine may take the Senior Examinations for doctors of Chinese medicine, while examinees who have not received formal education in Chinese medicine may take the Special Examination for doctors of Chinese medicine. The Examination Yuan duly promulgates the disputed provisions pursuant to the authorization of the Professionals and Technologists Examinations Act and on the basis of its professional judgment. The standards used to determine who passes the Special Examinations and who does not are a rational means used to determine whether particular examinees are qualified to work as doctors of Chinese medicine. Therefore, such standards are consistent with the principle of proportionality under Article 23 of the Constitution, the protection of the people’s right to work under Article 15 of the Constitution, and the protection of the people’s right to take examinations under Article 18 of the Constitution.

    The guarantee of people’s right to equal protection under Article 7 of the Constitution is intended to prevent legislative arbitrariness and unreasonable differential treatment. For a statute or regulation to meet the equal protection requirement, the purpose of the differential treatment must be constitutional, and enough degree of nexus must exist between the classification set out in the regulation and the objectives that the regulation seeks to achieve. For examinees with various academic backgrounds and work experiences, the Examination Yuan holds three different examinations. Although such differences in the knowledge tested and the minimum requirements may constitute limitations on the people’s rights to choose occupations and to take examinations, the manner in which examinations are held involves the professional judgment about examinations. Therefore, as long as the classification is rationally related to the purpose of evaluating the knowledge and ability of the examinees, classification itself does not violate the principle of equal protection. Article 3 of the Professionals and Technologists Examinations Act divides Professionals and Technologists Examinations into three levels—senior, junior, and elementary—and authorizes the Examination Yuan to hold Special Examinations corresponding to these three levels to meet special needs.  Articles 9, 10, and 11 of the same Act stipulate the qualifications, including both academic backgrounds and work experiences, required to take examinations. Article 22 further stipulates explicitly that depending on the needs of the particular kinds of professionals and technologists, additional training or education may be required after examinees pass examinations, and examinees may be licensed to work as professionals or technologists only after successfully completing this additional training or education. All of these rules imply the following policy consideration: Although professionals and technologists should be selected by the Examination Yuan through fair examinations held in accordance with the law, all methods of examination, including written examination, oral examination (interviews), on-site examination, review of publications, and review of diploma and work experience, cannot perfectly ascertain the professional abilities of examinees. In addition, professionals’ and technologists’ abilities and ethics must be cultivated by systematic education and cannot be ascertained through examinations only. Therefore, for the purpose of ensuring that the examinees that pass examinations have adequate professional abilities, the Legislative Yuan enacted the aforementioned articles in the Professionals and technologists Examinations Act, offering examinations for individuals with specific academic backgrounds and requiring additional training or learning. The purpose was to establish a reasonable examination system for professionals and technologists. Pursuant to Article 3 of the Physicians Act and the relevant rules in the Professionals and Technologists Examinations Act, the Examination Yuan divides the examinations for doctors of Chinese medicine into senior examinations and special examinations, and promulgates different examination rules with respect to the test subjects and the standards used to determine who passes the examinations and who does not, taking account of the fact that the examinees of these two examinations differ in their education and training in Chinese medicine. In addition, the requirement of Article 9, Section 3 of the Examination Rules on the Special Examination for doctors of Chinese Medicine, which states that successful examinees must receive at least 55 points for Chinese Internal Medicine and at least 45 points for other professional subjects, is a professional judgment made by the Examination Yuan in accordance with the legal procedure, and is rationally, instead of arbitrarily, related to the purpose of the Special Examination for doctors of Chinese medicine—identifying examinees who have the knowledge, techniques, and ability to practice as doctors of Chinese medicine. For this reason, the aforementioned rules promulgated by the Examination Yuan do not violate the principle of equal protection under Article 7 of the Constitution.

    In conclusion, the disputed regulations are consistent with the principle of statutory reservation and the principle of proportionality under Article 23 of the Constitution, as well as the right of equal protection under Article 7 of the Constitution. These rules are also consistent with the protection of people’s right to work under Article 15 of the Constitution and right to take examinations under Article 18 of the Constitution.

Translated by Chi CHUNG.