Go to Content Area :::

Decisions

Home > Decisions > Docket Search > Before 2022
:::
:::
  • Interpretation
  • No.768【A Person of Both Domestic and Foreign Nationalities Is Not Eligible for the Position of the Public Medical Care Institute Physician Employed with the Civil Servant Status】
  • Date
  • 2018/10/05
  • Issue
    • 1. Does Article 1 of the Medical Personnel Management Act violate the principle of clarity and definiteness of law (Rechtsbestimmtheitprinzip)?
    • 2. Do Article 1 of the Medical Personnel Management Act as well as the text of Article 28, Paragraph 1, Subparagraph 2 and Paragraph 2 of the Civil Service Employment Act, which restrict a physician of both the Republic of China (Taiwan) and foreign nationalities from serving as the public medical care institute physician employed with the civil servant status and ought to relieve the duty of those who already have been employed, violate the intent of Article 18 of the Constitution on the protection of people’s right of holding public offices?
    • 3. Do Article 20, Paragraph 1 of the Nationality Act and the Medical Personnel Management Act, which provide no exception to remove the limitation on a person of both the Republic of China (Taiwan) and foreign nationalities to serve as the public medical care institute physician employed with the civil servant status, violate the intent of Article 7 of the Constitution on the protection of people’s right to equality?
  • Holding
    •        Article 1 of the Medical Personnel Management Act provides: “[m]atters related to medical personnel are stipulated in accordance with this Act. If there is no applicable provision in this Act, relevant provisions of other laws shall apply.” This provision does not contravene the principle of clarity and definiteness of law (Rechtsbestimmtheitprinzip).
      
    •        According to Article 1 of the Medical Personnel Management Act, as well as the text of Article 28, Paragraph 1, Subparagraph 2 and Paragraph 2 of the Civil Service Employment Act which provides: “(Paragraph 1) Personnel to whom any one of the following circumstances apply may not be employed as civil servants: … 2. Citizens of the Republic of China with dual citizenship of a foreign nationality. … (Paragraph 2) Civil servants to whom, following employment, any one of the circumstances given in Subparagraphs 1 through 8 of the preceding Paragraph apply, shall be relieved of duty….” The provisions apply to physicians of both the Republic of China (Taiwan) and foreign nationalities and restrict them from serving as the public medical care institute physicians employed with the civil servant status; those who have already been employed should be relieved of duty. The aforementioned provisions do not contravene the principle of proportionality and do not violate the intent of Article 18 of the Constitution on the protection of people’s right of holding public offices.
      
    •        Article 20 of the Nationality Act and the Medical Personnel Management Act provide no exception to remove the limitation on a person of both the Republic of China (Taiwan) and foreign nationalities to serve as a public medical care institute physician employed with the civil servant status. The aforementioned provisions do not violate the intent of Article 7 of the Constitution on the protection of people’s right to equality.
  • Reasoning
    •        The Petitioner Chin-Liang Liu had been serving as a physician of the Taipei Municipal Yangming Hospital (due to reorganization on January 1, 2005, the hospital was merged into the Taipei City Hospital as its Yangming Branch) since January 15, 1991. He had been employed as a professional technician reviewed and verified by the Ministry of Civil Service since then, and was later changed to be employed as medical personnel on January 16, 2000. The Health Department of the Taipei City Government learned from the Shilin District Court Prosecution Office 101-Chen-Zu-59 Non-Prosecution Disposition that the Petitioner acquired the Canadian nationality on June 24, 2004, thereby relieving the Petitioner of his duty retrospectively to that date according to the text of Article 28, Paragraph 1, Subparagraph 2 and Paragraph 2 of the Civil Service Employment Act. The Petitioner filed a claim for deliberation and brought an action after the claim was denied. The Taipei High Administrative Court Judgement 102-Su-264 (2013) dismissed the Petitioner’s action. The Petitioner appealed, but the Supreme Administrative Court Order 102-Tsai-1640 (2013) still dismissed the Petitioner’s appeal because it is not in conformity with the law. The Supreme Administrative Court Order is the final judgement on which this petition is based. The Petitioner contended that the Medical Personnel Management Act (hereinafter “the Medical Personnel Act”) provides no rules on whether medical personnel of both the Republic of China (hereinafter “ROC”) (Taiwan) and foreign nationalities (hereinafter “dual nationalities”) could be employed by public medical care institutes, and the Nationality Act applies to deny all the employment of medical personnel possessing dual nationalities by public medical care institutes. The aforementioned legislative omissions, as well as the Nationality Act and other relevant laws restricting the Petitioner from serving at the public medical care institute, are in violation of the national policies stipulated in Article 157 of the Constitution and Article 10, Paragraph 5 of the Additional Articles of the Constitutional and other provisions, and Article 7, 15, and 23 of the Constitution and other provisions. Additionally, Article 1 of the Medical Personnel Act provides that “[m]atters related to medical personnel are stipulated in accordance with this Act. If there is no applicable provision in this Act, relevant provisions of other laws shall apply” (hereinafter “Provision I”). Provision I hinders medical personnel of dual nationalities from being able to foresee disemployment and violates the principle of clarity and definiteness of law (Rechtsbestimmtheitprinzip). Further, in terms of state treatments on professional and technician personnel of dual nationalities, the state treats medical personnel differently from educational and public enterprise ones without justifiable causes (see the subparagraphs of the saving clause of Article 20, Paragraph 1 of the Nationality Act), which violates the principle of equality by Article 7 of the Constitution. Based on the foregoing claims, the Petitioner brought an action to this Constitutional Court for interpretation.
      
    •        The Petitioner was discharged according to Provision I that applies the text of Article 28, Paragraph 1, Subparagraph 2 and Paragraph 2 of the Civil Service Employment Act: “(Paragraph 1) Personnel to whom any one of the following circumstances apply may not be employed as civil servants: … 2. Citizens of the ROC (Taiwan) with dual citizenship of a foreign nationality. … (Paragraph 2) Civil servants to whom, following employment, any one of the circumstances given in Subparagraphs 1 through 8 of the preceding Paragraph apply, shall be relieved of duty…” (hereinafter “Provision II”). In addition, Article 20, Paragraph 1 of the Nationality Act provides: “A national of the ROC (Taiwan) who acquires the nationality of another country has no right to hold government offices of the ROC (Taiwan). If he/she has held a government office, the relevant authority shall discharge his/her government office; a legislator shall be discharged by the Legislative Yuan, government service personnel elected by the people of a municipality, county (city), township (city) shall be discharged by the Executive Yuan, the Ministry of Interior, or a county government respectively, a village chief shall be discharged by the township (city, district) office, but the following Subparagraphs shall not be subject to this restriction if provided by the competent authorities:1.Presidents of public universities, teachers who concurrently serve as administrative governors of public school of all levels, principals, vice principals or researchers (including researchers who concurrently serve as governors of academic research) of research organizations (bodies) and principals, vice principals and contracted professionals (including part-time governors) of social education or culture bodies established with the approval of the competent administrative authority of education or culture authorities. 2. Personnel in public-operated utilities other than the persons who take primary decision-making responsibility for the operational policy. 3. Non-governor positions focusing on technology research and design regularly engaged through contract by various authorities.4. Commissioners without position engaged through selection for consultation only according to the organizational law by the competent authority of overseas Compatriot affairs.5. Otherwise provided by other acts.” (hereinafter “Provision III”). Provision I to III are all laws applied by the final judgement. Although the Petitioner’s brief alleged only that Provision I violates the principle of clarity and definiteness of law, and that Provision II and III not providing exceptions for medical personnel of dual nationalities are unconstitutional, the Petitioner’s brief also pointed out that relevant laws inhibiting him from serving at the public medical care institute are against the principle of proportionality. Therefore, Provision II applying to physicians of dual nationalities in accordance with Provision I is also included in the Petitioner’s brief. This case should be heard, given that the petition fulfills the criteria stipulated in Article 5, Paragraph 1, Subparagraph 2 of the Constitutional Court Procedure Act. This Court hereby renders the interpretation and its reasoning as follows:
      
    •        1. The Scope of Interpretation
      
    •        The Petitioner brought this action for interpretation on the basis of the violation of the constitutional rights by the “medical personnel.” However, the scope of medical personnel has been really broad, including physicians, and additionally, Chinese medicine doctors, dentists, pharmacists, laboratory technologists, professional registered nurses, registered professional midwives, dietitians, physical therapists, occupational therapists, radiology technologists, clinical psychologists, counseling psychologists, respiratory therapists, assistant pharmacists, laboratory technology assistants, registered nurses, midwives, physical therapy assistants, occupational therapy assistants, radiologists, and other persons with professional medical certificates issued by the central competent authority who serve medical duties stipulated in the organizational acts of public medical care institutes, government agencies, or public schools (see Article 2 of the Medical Personnel Act).Moreover, physicians employed at the public medical care institutes include physicians fulfilling the qualifications of Article 4 of the Medical Personnel Act and being employed to acquire the civil servant status (hereinafter “physicians employed with the civil servant status”), residential physicians hired in accordance with laws of employing contract-based workers (see Article 9 of the Medical Personnel Act and Contract-Based Worker Employment Act), and physicians hired by contract (such as those who are hired by contract in accordance with Guidelines for Employment and Management of Contracted-Based Personnel of Medical Care Institutes Under the Ministry of Health and Welfare). Given that the Petitioner was a physician employed with the civil servant status, it should be noted that the scope of this interpretation is only limited to physicians employed with the civil servant status.
      
    •        2. Provision I Does Not Violate the Principle of Clarity and Definiteness of  Law
      
    •        The clarity and definiteness of law does not simply require the text of provisions to be of a concrete and detailed legal style. If the meaning of a statute is not too difficult to ascertain from the provisional contexts, the legislative intent as well as the entire context of the legal system, and whether the facts of a specific case fall within the statute’s normative objective or not is foreseeable by people subject to the regulation and determinable by the judiciary, then the principle of legal clarity and definiteness is not violated (see J.Y. Interpretation Nos. 594, 617, 690 and 767). Provision I explicitly provides: “[m]atters related to medical personnel are stipulated in accordance with this Act. If there is no applicable provision in this Act, relevant provisions of other laws shall apply.” It is of no questions that matters related to medical personnel of dual nationalities are regulated under this article. “Relevant provisions” referred in this article should cover the regulations among Provision II and III regarding the ineligibility of serving as civil servants and the requirement of relieving those who have already been employed of their duties. Hence, the meaning of the text of Provision I is quite clear and definite. Those physicians who are employed with civil servant status are also regulated under the foregoing laws regarding the nationality of civil servants; therefore, in a specific case, if a physician of ROC (Taiwan) also has a foreign nationality, the physician is not eligible to serve in the position of the public medical care institute physician employed with the public servant status and those who have been already employed should be relieved of their duties, as the result of applying Provision II according to Provision I. This result is foreseeable by people subject to the regulation and determinable by the judiciary. Hence, Provision I is not in conflict with the principle of legal clarity and definiteness.
      
    •        3. Provision I and II Do Not Contravene the Constitutional Intent of  Protecting People’s Right of Holding Public Offices
      
    •        The Petitioner was originally a physician of employed by the public medical care institute with civil servant status and lost his status as the result of applying Provision II in accordance with Provision I. This case is thus essentially a question of people’s right of holding public offices. Despite that the Petitioner alleged violation of his right to work protected by Article 15 of the Constitution, the following only considers the right of holding public offices, given that the civil service is a unique type of work.
      
    •        Article 18 of the Constitution stipulates that the people shall have the right of holding public offices. The scope of “public office” is extensive. All levels of elected representatives, civil servants of the central and local government agencies and other personnel who are engaged in official affairs pursuant to the law, fall within the scope (see J.Y. Interpretation Nos. 42 and 764). Civil servants appointed according to the Civil Service Employment Act are also covered by the scope “public offices” as defined in Article 18 of the Constitution. They represent the state to carry out public duties and have been involving in a particularly close relation of loyalty and trust with the state. The state thereby should have greater discretion over whether people of dual nationalities are eligible to serve as civil servants. The state’s restriction does not contravene the principle of proportionality, provided that the purpose is legitimate, and a reasonable correlation exists between the means and the end.
      
    •        A public medical care institute physician, if being employed with the civil servant status, is considered to be the civil servant as defined in the Civil Service Employment Act. As a result of applying Provision II in accordance with Provision I, he or she is also regulated by the general restrictions applicable to civil servants over people of dual nationalities holding public offices. Provision II restricting people of dual nationalities from serving as civil servants and disemploying those who have already been employed are based on the considerations of sustaining the relation of loyalty and trust between the state and civil servants. The purpose is legitimate indeed. The means of restricting people of dual nationalities from serving civil servants is neither arbitrary, nor of no reasonable correlation with the achievement of the end. Provision II, according to Provision I, applies to physicians of dual nationalities so that they are not eligible to serve as public medical care institute physicians and those who have already been employed should be relieved of duty. The foregoing provisions at issue are not in conflict with the principle of proportionality under Article 23 of the Constitution and do not contravene the constitutional intent of protecting people’s right of holding offices under Article 18 of the Constitution.
      
    •        4. Provision III and the Medical Personnel Act Are Not in Conflict with the Constitutional Intent of Protecting the Right to Equality
      
    •        The right to equality enshrined in Article 7 of the Constitution does not necessarily prohibit all differential treatment. The legislature and the relevant authorities, based on the value system of the constitution and the legislative intent, may make reasonable differential treatment, taking into consideration the inherent differences in the subject-matter concerned. Whether a legal norm complies with the requirement of the principle of equality should be determined by whether the purpose served by the differential treatment is constitutional, and whether there is a certain level of correlation between the classification in question and the achievement of the purpose the legal norm sets out to pursue (see J.Y. Interpretation Nos. 682, 694, 701, 719, 722, 727 and 745 and 750). 
      
    •        Provision III only provides exceptions for presidents of public universities, teachers who concurrently serve as administrative governors of public school of all levels, principals, vice principals or researchers of research organizations (bodies) (hereinafter “educational personnel”), and personnel in public-operated utilities other than the persons who take primary decision-making responsibility for the operational policy (hereinafter “public enterprise personnel”), permitting those of dual nationalities to serve as educational or public enterprise personnel. The differential treatment seemingly exists, for the reason that Provision III and the Medical Personnel Act do not set out similar exceptions for public medical care institute physicians employed with the civil servant status and thereby restrict people of dual nationalities from serving the position with the civil servant status.
      
    •        The differential treatment at issue involves people’s right of holding public offices. Given that civil servants and the state have lasting close relations of trust as this interpretation has addressed, the state should have greater discretion over whether people of dual nationalities are eligible for holding public offices as well as what type of positions of civil service they could serve in. Furthermore, the standard of review should be loose because the classification based on the occupation does not touch suspect classification. Based on the classification of certain occupations, the differential treatment that the state only permits people of dual nationalities to serve in the positions of educational and public enterprise personnel without expanding exceptions to public medical care institute physicians employed with the public servant status do not violate the principle of equal protection, as long as the purpose is to pursue legitimate public interests and reasonable a correlation exist between the means and the end. Each of the exceptions stipulated in the saving clause of Provision III are based on its special concerns, such as recruiting professionals of rare specialties or unique techniques to lead educational and academic research institutes that upgrades the level of teaching and research of our country, or recruiting outstanding human resources to improve the merits of public enterprises (see Article 20, Subparagraph 2 and the Proceedings of Yuan Sittings published in the Legislative Yuan Gazette 89(9): 142, 169). The abovementioned purposes are all legitimate public interests which could be pursued by the legislative sector, and the means taken are also helpful to achieve those purposes. It is even worth noting that both educational and public enterprise personnel are not civil servants as defined in the Civil Service Employment Act and cannot be comparable to physicians employed with the civil servant status. To sum up, the differential treatment formed under Provision III and the Medical Personnel Act are within the scope of legislative discretion and not in violation of the constitutional intent of protecting the right to equality under Article 7 of the Constitution.
      
    •        5. Provision I to III and the Medical Personnel Act Are Not Suspicious of Violating Article 157 of the Constitution and Article 10, Paragraph 5 of the Additional Articles of the Constitution
      
    •        Article 157 of the Constitution provides: “[t]he State, in order to improve national health, shall establish extensive services for sanitation and health protection, and a system of public medical service.” Article 10, Paragraph 5 of the Additional Articles of the Constitution also stipulates: “[t]he State shall promote universal health insurance and promote the research and development of both modern and traditional medicines.” Both articles are clauses of the Fundamental National Policies, where the legislator should be authorized with greater discretion on how to make relevant laws fulfilling the constitutional intent. Provision I and II restrict people of dual nationalities from serving as public medical care institute physicians employed with the public servant status; the saving clause of Provision III and the Medical Personnel Act set out no exceptions for people of dual nationalities from the ineligibility of serving as public medical care institute physicians employed with the public servant status; the foregoing provisions are not involved with the problem of violating Article 157 of the Constitution, Article 10, Paragraph 5 of the Additional Articles of the Constitution or other clauses of the Fundamental National Policies.
      
    • ______________________
      
    • *Translated by Chao-Tien Chang
      
Back Top