I. Relevant facts and summary statements of the petitioner. 【1】
1. Relevant facts. 【2】
The Fifth Panel of the Taipei High Administrative Court (hereinafter referred to as the “petitioner”), in hearing the Taipei High Administrative Court Personnel Administrative Case 106-Su-936, considered that the following provisions of the Civil Servant Performance Evaluation Act should apply: Article 6, Paragraph 3, Subparagraph 4: “Unless otherwise provided by this Act, the evaluated person shall not be given a grade of D in the performance evaluation for the evaluation year unless under one of the following circumstances: … (4) where the evaluated person has improper conduct, or violates relevant laws and prohibitions, thereby seriously damaging the reputation of civil servants, with conclusive evidence” (hereinafter referred to as “Disputed Provision 1”); Article 7, Paragraph 1, Subparagraph 4:“Rewards and punishments in annual performance evaluations shall be determined as follows: … (4) Grade D: dismissal” (hereinafter referred to as “Disputed Provision 2”); The latter part of Article 8:“For personnel subject to performance evaluation, … those given a grade of D shall be dismissed” (hereinafter referred to as “Disputed Provision 3”); Article 3, Paragraph 3, Subparagraph 7 of the Administrative Procedure Act: “The following matters shall not be subject to the procedural provisions of this Act: … (7) personnel administrative actions taken by public servants” (hereinafter referred to as “Disputed Provision 4”). Since the petitioner questioned the constitutionality of these provisions, it suspended the pending proceedings and lodged a petition with this Court for constitutional interpretation.【3】
2. The gist of the petitioner’s statement. 【4】
The petitioner’s arguments may be summarized as follows: (1) Disputed Provisions 1 to 3, by imposing the legal effect of dismissal through the granting of a grade D in annual performance evaluation or in a supplementary performance evaluation for serious misconduct of individual civil servants, in substance constitute disciplinary sanctions. Such disciplinary sanctions are administered by the Examination Yuan through the performance evaluation system, which is inconsistent with Article 77 and Article 83 of the Constitution, as well as Article 6, Paragraph 1, Subparagraph 3 of the Additional Articles of the Constitution, all of which require a unitary disciplinary system under which disciplinary sanctions of public functionaries shall be administered by the Judicial Yuan;(2) The current dual-track system of administrative sanctions and disciplinary proceedings lacks clear regulation, leaving the initiation of authority to pursue civil servants’ misconduct to the discretion of the supervisory officer. This not only results in differential treatment in pursuing liability among different responsible persons but also exposes the same misconduct to the risk of double punishment, thereby violating the constitutional principles of legal clarity, equality, and proportionality;(3) By granting administrative agencies the authority to dismiss civil servants through performance evaluations, Disputed Provisions 1 to 3 deprive civil servants of their official status in a manner that contradicts the constitutional intent underlying Article 77 of the Constitution, which reserves disciplinary sanctions to be imposed by judges. This also violates the constitutional requirement of due process of law. The remaining arguments are as set out in the petition. 【5】
II. Basis of admissibility and scope of review.【6】
1.Basis of admissibility and scope.【7】
The petitioner lodged the petition on June 15, 2020 (the date this Court received the case). Whether the petition is admissible shall depend on whether it satisfies the requirements set forth in J.Y. Interpretations No. 371, No. 572, and No. 590 (cf. Article 90, Paragraph 1, proviso, of the Constitutional Court Procedure Act). As to Disputed Provisions 1 and 2 challenged by the petitioner, the requirements mentioned above are satisfied, and thus the petition is admissible. As to Disputed Provision 3, although it is not a legal provision that should be applied by the petitioner, since its legal effect is the same as that of Disputed Provisions 1 and 2 and is closely related to the case, it shall also be admissible. As to Disputed Provision 4, the petitioner has not provided sufficiently specific reasons that could objectively establish a conviction of unconstitutionality; therefore, this part of the petition is inadmissible.【8】
2. Oral argument proceedings. 【9】
This Court held oral argument on March 29, 2022, at 10:00 a.m., and invited the petitioner, the Ministry of Civil Service, the Directorate-General of Personnel Administration of the Executive Yuan, the Department of Administrative Litigation and Discipline of the Judicial Yuan, as well as experts and scholars to appear and present their opinions. 【10】
The gist of the petitioner’s oral argument may be summarized as follows: (1) The principle of unitary disciplinary power implied in Article 77 of the Constitution aims to prevent civil servants from being subjected to different proceedings by different state organs for the same unlawful or derelict conduct, thereby implementing the constitutional requirements of ne bis in idem and due process of law;(2) The dismissal effect arising from a grade D in the annual performance evaluation is based on unlawful or derelict conduct of civil servants and, in substance, constitutes a disciplinary sanction;(3) Although administrative agencies may, for the purpose of administrative management, impose performance evaluation measures on civil servants with a legitimate objective, the nature of administrative performance evaluation and disciplinary sanctions is different. Accordingly, the scope of administrative sanctions and disciplinary authority, as well as the procedures to be applied, shall also differ. Administrative superiors shall not have discretionary power to arbitrarily choose between administrative sanctions and disciplinary proceedings; otherwise, this would violate the principles of legal clarity, due process of law, and proportionality. The remaining arguments are as set out in the petitioner’s petition. 【11】
The gist of the oral argument of the Ministry of Civil Service may be summarized as follows:(1) Disciplinary sanctions and administrative sanctions are distinct. From the perspective of constitutional history, the coexistence of a dual-track system of administrative and disciplinary sanctions has remained unchanged since the enactment of the Constitution. In addition, Article 6 of the Additional Articles of the Constitution vests dismissal authority in both the Examination Yuan and the Executive Yuan. Therefore, there is no principle of a unitary disciplinary system under the Constitution;(2) J.Y. Interpretations No. 243 and No. 298 affirmed the legitimacy of this dual-track system. Moreover, the reasoning in those Interpretations—that civil servants may seek administrative remedies against substantive disciplinary sanctions—has lost its necessity following J.Y. Interpretation No. 785. Accordingly, an administrative sanction resulting from an annual performance evaluation and a substantive disciplinary sanction shall be treated as two separate matters;(3) Since the executive branch bears responsibility for the success or failure of governance, and administrative superiors are most familiar with the performance of civil servants under evaluation, conferring authority over personnel rewards and sanctions upon them accords with the principle of separation of powers. The remaining arguments are as set forth in the Ministry’s written oral statement. 【12】
The gist of the oral argument of the Directorate-General of Personnel Administration of the Executive Yuan may be summarized as follows:(1) The Executive Yuan, as the highest administrative organ, exercises the executive power of appointment, removal, and performance evaluation of civil servants. Therefore, administrative sanctions fall within the inherent powers of the executive branch. Referring to the constitutional drafting process, Article 77 of the Constitution, which vests disciplinary sanctions of civil servants in the judiciary, was intended to prevent the Control Yuan from exercising both the power of impeachment and the power of adjudication. Thus, Article 77 of the Constitution does not imply a requirement of a unitary disciplinary system; (2) The power to dismiss civil servants is an inherent power of the executive branch and does not depend on whether the purpose is to evaluate misconduct. In addition, the “reasonable scope” language in J.Y. Interpretation No. 298 only addressed issues concerning disciplinary sanctions of public functionaries, and is irrelevant to administrative sanctions under the Civil Servant Performance Evaluation Act;(3) Although a grade D in the annual performance evaluation does result in the deprivation of a civil servant’s official status, in practice, procedural due process protections have been afforded to the people. Therefore, it does not conflict with the constitutional intent of Article 18, which guarantees the right to hold public office. The remaining arguments are as set out in the Directorate-General’s written oral argument. 【13】
The gist of the oral argument of the Department of Administrative Litigation and Discipline of the Judicial Yuan may be summarized as follows:(1) Referring to the civil servant discipline system prior to the enactment of the Constitution, the constitutional drafting process, and the purposes of relevant J.Y. Interpretations, Article 77 of the Constitution embodies the constitutional principle of a unitary disciplinary system. Accordingly, the executive branch shall not have the authority to impose disciplinary sanctions on civil servants;(2) The intent of Article 77 of the Constitution, which vests the authority to impose disciplinary sanctions on civil servants in the Judicial Yuan, is to safeguard the rights and interests of civil servants. Therefore, the “reasonable scope” language in J.Y. Interpretation No. 298 shall not encompass dismissals under the Civil Servant Performance Evaluation Act that are of a substantive disciplinary nature;(3) The dismissal measure under the annual performance evaluation prescribed in the Civil Servant Performance Evaluation Act deprives civil servants of their official status and restricts the people’s right to hold public office guaranteed by Article 18 of the Constitution. This constitutes a core matter exclusively reserved to the judiciary and shall not be exercised by administrative superiors. The remaining arguments are as set forth in the Department’s written oral argument. 【14】
This Court, having considered the petition, the parties’ oral arguments, and the submissions on record, renders this Judgment for the following reasons. 【15】
III. Review of the admissible part.【16】
Disputed Provisions 1 to 3 empower administrative agencies to dismiss civil servants by imposing a grade D in the annual or supplementary performance evaluation. The constitutional issues thereby raised concern two main questions:(1) Does the above-mentioned administrative sanctioning power with the effect of dismissal contravene Article 77 of the Constitution?(2) Does the above-mentioned administrative power of dismissal infringe upon the right to hold public office guaranteed by Article 18 of the Constitution?Regarding these two questions, this judgment holds that there is no violation of the Constitution. 【17】
1. Disputed Provisions 1 to 3, which empower administrative agencies to dismiss civil servants by imposing a grade D in performance evaluations as an administrative sanction, are not inconsistent with Article 77 of the Constitution. 【18】
(1) The exercise of the power of dismissal by administrative agencies is consistent with the constitutional principle of separation of powers. 【19】
The constitutions of modern democratic constitutional states adopt the principle of separation of powers in the organization of government to prevent the abuse of power and to safeguard human rights. The Constitution of this country likewise embodies this principle, and J.Y. Interpretation No. 499 has further recognized it as one of the unamendable constitutional limits, lying beyond the scope of constitutional amendment by implication. Although the specific institutional arrangements for the separation of powers vary across different countries, three aspects are generally emphasized:a. Categorization of powers: Most constitutions classify governmental powers by their nature into three categories—executive, legislative, and judicial;b. Allocation of powers to organs: Each category of power is vested in the organ most suitable to exercise it, in light of organizational structure and procedural function, thereby ensuring effectiveness. As a general rule, the same organ is prohibited from exercising two or more categories of power so as to prevent the concentration of authority;c. Mutual checks and balances of powers: Organs exercising different powers shall check and balance one another in order to prevent the abuse of power, maintain equilibrium, and safeguard human rights.This Court also elaborated on this point in the reasoning of J.Y. Interpretation No. 613, paragraph 5:“…The system of mutual checks and balances of powers has its limits. It must not contravene the explicit provisions of the Constitution; nor may it infringe upon the core functions of each constitutional organ, substantially obstruct the exercise of powers by other constitutional organs (see J.Y. Interpretation No. 585), or undermine the system of political accountability (see J.Y. Interpretation No. 391). For example, depriving another constitutional organ of the basic personnel and budget necessary for the performance of constitutionally assigned functions, depriving it of its constitutionally conferred core tasks, or directly substituting itself for such organ would cause an imbalance in the relationship among constitutional organs…”【20】
The question of whether the authority of dismissal through a grade D performance evaluation, as prescribed in Disputed Provisions 1 to 3 and exercised by administrative agencies, conforms to the principle of separation of powers may also be analyzed and determined according to the following steps:a. Whether the nature of such dismissal authority is to be characterized as an executive power or a judicial power?b. Whether such dismissal authority is more appropriately or necessarily exercised by administrative organs or judicial organs?c. If, as argued by the petitioner, such dismissal authority may only be exercised in the first instance by the judiciary—thus invoking the so-called principle of judicial reservation—whether this would contravene the limits of checks and balances described above?【21】
(i) The nature of the power of dismissal falls within the executive power and constitutes an inherent core authority of the personnel administration of administrative agencies. 【22】
The execution of laws and policies constitutes the core domain of executive power. For administrative agencies to effectively carry out various administrative affairs, they must be supported not only by financial budgets but also rely on personnel to implement administrative tasks. Without personnel, there can be no administration; thus, personnel power is an indispensable core authority of executive power. Under our legal system, dismissal generally refers to the termination of an individual civil servant’s current position, which may occur for reasons such as dismissal as a result of administrative or disciplinary sanctions, dismissal due to transfer to another post, or voluntary resignation. Once a civil servant is dismissed, the superior officer of the agency no longer has authority of command and supervision over that civil servant. Appointment of civil servants marks the starting point of personnel power, while dismissal marks its endpoint. Both are core matters of personnel power. Moreover, based on the principles of administrative unity and political accountability, the head of an agency must have a certain degree of authority of command and supervision over subordinate civil servants in order to carry out tasks and achieve administrative objectives. Although laws may prescribe general provisions regarding the qualifications, procedures, and effects of appointment and dismissal of civil servants, they may not completely deprive administrative agencies of the power of appointment and dismissal. Otherwise, this would infringe upon the core personnel power of administrative agencies (cf. the reasoning of J.Y. Interpretation No. 613, Part II). 【23】
In the promotion of governmental affairs, the operation of hierarchical command and supervision, and the safeguarding of the principle of administrative unity, the power of dismissal is of even greater importance than the power of appointment. In particular, with respect to civil servants subject to statutory qualification requirements, the employing agency may not freely select those it considers most suitable. However, if the employing agency has no means, in accordance with statutory procedures, to remove unfit civil servants who perform poorly or engage in unlawful or derelict conduct, administrative efficiency will inevitably be impaired, and the realization of administrative objectives may even be obstructed. Accordingly, compared with the power of appointment, the power of dismissal is more effective in ensuring command and supervision, and constitutes an indispensable inherent core authority of executive power under the Constitution. As for the qualifications, procedures, effects, and remedies of dismissal, these must separately comply with the constitutional requirements of Gesetzesvorbehalt principle , due process, and proportionality, which concern the protection of civil servants’ right to hold public office. These issues are distinct from the question of separation of powers addressed here. 【24】
(ii) The power of dismissal through performance evaluation is appropriately exercised by administrative agencies and must be decided by them in the first instance. 【25】
The annual performance evaluation system prescribed in Disputed Provisions 1 to 3 is part of the regular performance evaluation of civil servants. This evaluation system constitutes an important component of the personnel authority of administrative agencies and serves as a necessary supporting mechanism for the aforementioned power of dismissal. The results of performance evaluations provide employing agencies, on the one hand, with the basis for personnel decisions such as rewards and punishments, promotions, and dismissals, and, on the other hand, afford civil servants protection by requiring statutory grounds and procedures. In particular, regular performance evaluations (including annual evaluations) are mechanisms that employing agencies must establish and implement to exercise command and supervision and to remove unfit personnel. Since such regular evaluations are based on a comprehensive, year-long assessment of each civil servant’s performance, and because supervisors and agency heads are usually most familiar with the operational needs of their agencies as well as the work, conduct, knowledge, abilities, and performance of individual civil servants, the administrative branch, both in terms of organization and procedure, is the most suitable decision-making organ and the more appropriate body to make the first-instance determination. Compared with employing agencies vested with executive power, courts—though possessing legal expertise—are not necessarily as familiar as administrative agencies with the implementation of various administrative affairs. Moreover, the primary function of the courts is to provide external remedies after the fact, which are limited to legality review and do not extend to a substantive review of appropriateness or policy considerations. Therefore, in terms of organization, procedure, and professional competence, administrative agencies must remain the principal organs to exercise the power of dismissal, whereas courts can hardly, and are not suitable to, completely replace administrative agencies in making the first-instance determination on dismissal through performance evaluation. 【26】
Therefore, in constitutional interpretation, it must be acknowledged and safeguarded that where specific statutory grounds arise with respect to a civil servant under its jurisdiction, and the circumstances are serious (including incompetence, serious obstruction of the effective performance of official duties, or other major misconduct), an administrative agency may, in accordance with due process of law, dismiss such civil servant through performance evaluation. Conversely, to entirely deprive administrative agencies of the power to dismiss their civil servants would contravene the principle of functional suitability of organs and risk violating the constitutional principle of separation of powers. 【27】
(iii) Completely depriving administrative agencies of the power to dismiss their civil servants and transferring such authority entirely to the judiciary would exceed the limits of the system of checks and balances. 【28】
Although the power of dismissal lies within the core domain of executive power, it is not without limitation. To improve the civil service system and safeguard the people’s right to hold public office, the legislature may enact laws prescribing the grounds for dismissal and the due process to be followed, and may grant dismissed civil servants the right to seek judicial remedies in accordance with law, thereby checking and balancing the executive power. However, such legislative restrictions may not completely deprive administrative agencies of the power of dismissal, nor transfer it to other organs. Otherwise, this would infringe upon the core domain of executive power, undermine political accountability, and lead to imbalance of powers. 【29】
Moreover, constitutional framers or amenders, based on considerations of checks and balances or other policy concerns, may allocate part of the first-instance power of dismissal to other constitutional organs for joint exercise (such as the impeachment power of the Control Yuan or the disciplinary power of the Judicial Yuan over civil servants), or allocate the power of dismissal to both the Executive Yuan and the Examination Yuan—two constitutional administrative organs—to create an internal division of labor within the executive power and inter-Yuan checks and balances. So long as the power of dismissal of administrative agencies is not entirely replaced, such arrangements remain a matter of constitutional policy choice and do not violate the principle of separation of powers.7【30】
(2) The exercise of administrative sanctioning power by administrative agencies to impose dismissal measures does not conflict with Article 77 of the Constitution.【31】
The petitioner argued that Disputed Provisions 1 to 3 permit administrative agencies to exercise administrative sanctioning power to impose dismissal measures through a grade D performance evaluation, which conflicts with the principle of a “unitary disciplinary system” implied in Article 77 of the Constitution.【32】
According to the current systems of disciplinary sanctions and administrative sanctions, although their grounds may overlap, their purposes and effects are distinct. In terms of purpose, disciplinary sanctions constitute the State’s punishment of civil servants for unlawful or derelict conduct (cf. Article 2 of the Civil Servant Disciplinary Act). Administrative sanctions, by contrast, constitute the State’s comprehensive evaluation of civil servants’ professional performance, ensuring that merit is rewarded and demerit punished, and are carried out through performance assessments (cf. Article 2 of the Civil Servant Performance Evaluation Act). In terms of effect, under the current Civil Servant Disciplinary Act, dismissal not only removes a civil servant from the current position but also results in disqualification from reappointment; it stipulates that removal not only removes a civil servant from the current position but also has the effect that reappointment is prohibited for a certain period (cf. Articles 9, 11, and 12 of the Civil Servant Disciplinary Act). By contrast, dismissal under the Civil Servant Performance Evaluation Act only has the effect of removing the civil servant from the current position, without fundamentally depriving the individual of civil servant status. 【33】
Furthermore, the systems of disciplinary sanctions and administrative sanctions can be traced back to the legal regime during the period of political tutelage of the Republic of China. From the outset they have been distinct systems, and they continued to operate in a dual-track manner after the Constitution came into force. Neither the constitutional intent at the time of framing nor subsequent constitutional amendments supports the interpretation that Article 77 of the Constitution implies a “unitary disciplinary system,” nor do they prohibit administrative agencies from exercising administrative sanctioning power with the effect of dismissal. Past J.Y. Interpretations have likewise recognized that both administrative sanctions and judicial disciplinary sanctions may result in dismissal or decisions with similar effects. 【34】
(i) Article 77 of the Constitution neither implies nor entails the meaning or effect of a “unitary disciplinary system.” 【35】
According to Article 3 of the Civil Servant Disciplinary Act, promulgated and enforced on June 8, 1931, dismissal was explicitly listed as one of the disciplinary sanctions, with the effect of suspension from reappointment for at least one year. On July 2, 1935, the Civil Servant Performance Evaluation Act was promulgated and enforced on July 16 of the same year. Article 2 of that Act divided civil servant evaluations into annual evaluations (covering one year of performance) and general evaluations (combining the results of three years). On November 1, 1935, the Civil Servant Performance Evaluation Rewards and Sanctions Act was promulgated and enforced; Article 3 of that Act stipulated removal as a sanction, while Articles 4 and 5 expressly provided that removal constituted one of the sanction measures under both annual and general evaluations. On February 26, 1943, the Emergency Period Civil Servant Performance Evaluation Act was promulgated and enforced. Article 5 of that Act replaced the term “removal” with “dismissal”, and Article 3, Paragraph 3 provided: “Civil servants … who commit serious misconduct warranting a major demerit may, in addition to being subject to the above-mentioned sanction procedures, also be referred for disciplinary sanctions in accordance with the law depending on the circumstances of the case.” This provision clearly distinguished between administrative sanctions and disciplinary sanctions. After the Constitution came into force, Article 6 of the Civil Servant Performance Evaluation Act, promulgated and enforced on January 1, 1949, continued to maintain the provisions on dismissal under annual and general evaluations. Through subsequent amendments, the administrative sanction system of dismissal through a grade D performance evaluation has been preserved to this day, coexisting without conflict with judicial disciplinary sanctions of dismissal or removal. The implementation of Article 77 of the Constitution has not altered this dual-track arrangement. 【36】
Article 77 of the Constitution indeed provides: “The Judicial Yuan shall be the highest judicial organ of the State and shall have charge of civil, criminal, and administrative adjudications, as well as disciplinary sanctions of public functionaries.” However, examining the constitutional drafting process, the National Assembly at the time sought to avoid the Control Yuan both initiating and adjudicating impeachment cases (i.e., disciplinary sanctions). Therefore, the authority to adjudicate disciplinary sanctions following impeachment was transferred from the Control Yuan to the Judicial Yuan, and Article 77 expressly vested the power of disciplinary sanctions of public functionaries in the Judicial Yuan (see Records of the National Assembly, compiled and printed by the Secretariat of the National Assembly, December 1946, pp. 445, 477, 479). The purpose was merely to establish judicial disciplinary sanctions as an external check on the Control Yuan’s impeachment power, thereby preventing the Control Yuan from serving a dual role as both player and referee in impeachment cases. It was unrelated to the administrative sanction system, which already existed and operated concurrently at the time of constitutional drafting. 【37】
Article 81 of the Constitution provides: “Judges … shall not be removed from office unless they have been convicted of a criminal offense or subjected to disciplinary sanctions ….” This expressly prohibits either judicial or administrative organs from directly dismissing judges through administrative sanctions, thereby safeguarding judicial independence. By contrast, other civil servants are not afforded the special protection of “no dismissal unless by disciplinary sanction.” Therefore, under a systematic interpretation of the above constitutional provisions, the dual-track system of dismissal through administrative sanctions and judicial disciplinary sanctions may apply to civil servants other than judges, without conflicting with Article 77 of the Constitution. 【38】
In other words, the term “disciplinary sanctions of public functionaries” in Article 77 of the Constitution, when properly interpreted, does not encompass administrative sanctions, nor does it require that courts serve as the first-instance decision-making organ for both disciplinary and administrative sanctions of civil servants. The petitioner’s claim that Article 77 of the Constitution implies a “unitary disciplinary system,” thereby requiring that all dismissals of civil servants—including those traditionally classified as administrative sanctions—must be decided in the first instance by courts, invoking the so-called principle of judicial reservation, is untenable. 【39】
(ii) Article 6 of the Additional Articles of the Constitution affirms that the executive power includes the power of dismissal. 【40】
According to Article 83 of the Constitution: “The Examination Yuan shall be the highest examination organ of the State, and shall be in charge of … appointment, … performance evaluation … and other related matters.” Article 6, Paragraph 1, Subparagraph 3 of the Additional Articles of the Constitution amended the term “appointment” in Article 83 to “appointment and dismissal,” thereby expressly confirming that both appointment and dismissal of civil servants fall within the scope of executive power. The same provision further stipulates that “the enactment of laws and regulations concerning the appointment, dismissal, performance evaluation, salary scales, promotion, and commendation of civil servants” shall fall within the authority of the Examination Yuan. Although this provision does not expressly state that the execution of appointment, dismissal, and performance evaluation of civil servants shall be transferred to the Executive Yuan, personnel power—including appointment and dismissal—constitutes an inherent core authority of the executive power. Since the execution of appointment and dismissal of civil servants no longer falls within the authority of the Examination Yuan, under the constitutional provisions concerning the organization and powers of the central government, the personnel administrative power relating to such matters, which the Constitution has not expressly allocated to other constitutional organs, shall, in interpretation, be administered by the Executive Yuan, which exercises the general executive power (cf. Article 53 of the Constitution). In addition, pursuant to Article 41 of the Constitution, the President shall appoint and dismiss civil and military officials by law. This also forms the constitutional basis for Article 6 of the Organizational Act of the Executive Yuan, which provides: “The Executive Yuan shall establish … the Directorate-General of Personnel Administration.” 【41】
It is thus evident that the purpose and effect of the above provision of the Additional Articles of the Constitution was merely to transfer the execution of matters such as the appointment, dismissal, and performance evaluation of civil servants from the Examination Yuan to the Executive Yuan, thereby revising and adjusting the allocation of powers between the two organs. It bears no relation to the impeachment power of the Control Yuan or to the Judicial Yuan’s authority to impose disciplinary sanctions on civil servants, and it certainly was not intended to transfer the existing administrative sanctioning power of dismissal to be exercised exclusively by the courts as the first-instance decision-making organ. 【42】
(iii) Past J.Y. Interpretations have also recognized the dual-track coexistence of administrative sanctions and judicial disciplinary sanctions. 【43】
At the time of constitutional drafting, the dual-track coexistence of administrative sanctioning power and judicial disciplinary power already existed. Accordingly, civil servants subjected to administrative sanctions should in principle seek remedies through administrative litigation as prescribed under Article 77 of the Constitution. However, due to the then-prevailing theory and practice of the “special power relationship,” civil servants were once unable to file appeals or bring administrative litigation against adverse measures imposed upon them. J.Y. Interpretations No. 243, No. 298, No. 323, No. 491, and No. 583, while emphasizing the Gesetzesvorbehalt principle and the protection of due process of law to institutionalize the civil service performance evaluation system, also gradually lifted the restrictions on civil servants seeking judicial remedies against administrative sanctions. Ultimately, J.Y. Interpretation No. 785 abolished such restrictions altogether, thereby fully realizing the principle of ubi jus ibi remedium. 【44】
After J.Y. Interpretation No. 785, since civil servants may, with respect to various unlawful public measures affecting their rights and interests (including dismissal by administrative sanction), bring the corresponding type of administrative litigation in accordance with law depending on the nature of the measure, it is no longer necessary to interpret dismissals through annual or supplementary performance evaluations as substantive disciplinary sanctions that may only be imposed through judicial disciplinary proceedings. As for whether dismissal through special performance evaluations, as examined in J.Y. Interpretation No. 491, should continue to be regarded as a “substantive disciplinary sanction” and thus fall exclusively within judicial disciplinary proceedings, or whether it should instead revert to being characterized as an administrative sanction while maintaining the current dual-track coexistence of administrative and judicial disciplinary sanctions, this issue does not fall within the scope of review in this Judgment and is hereby noted. 【45】
In sum, considering the overall intent of the constitutional drafting, subsequent constitutional amendments, and relevant J.Y. Interpretations, Article 77 of the Constitution shall be understood as providing the general and principal guarantee that civil servants subjected to administrative sanctions may seek judicial remedies through administrative litigation. By contrast, referral by the Control Yuan to judicial disciplinary proceedings under the Civil Servant Disciplinary Act constitutes an exceptional and special guarantee. This interpretation restores the proper understanding of Article 77 to its original intent. 【46】
2.Disputed Provisions 1 to 3 are not in conflict with the right to hold public office guaranteed by Article 18 of the Constitution. 【47】
Civil servants appointed under the Civil Service Employment Act represent the State in carrying out public functions and stand in a particularly close relationship of loyalty and trust with the State. To maintain unified command and supervision within the administration and to achieve administrative objectives, the legislature enjoys a certain degree of discretion in designing the content of the performance evaluation system. Nevertheless, because dismissal measures have a significant adverse impact on the status and rights of civil servants, this Court applies an intermediate level of scrutiny in reviewing the dismissal system under performance evaluations: if the legislative purpose pursues an important public interest, and there is a substantial connection between the means adopted and the achievement of that purpose, the system does not violate the principle of proportionality and therefore does not infringe upon the right to hold public office guaranteed by the Constitution. 【48】
Disputed Provisions 1 to 3, which provide that civil servants given a grade D in performance evaluation shall be dismissed, are designed to eliminate unfit civil servants, thereby ensuring administrative unity and enhancing administrative efficiency. The objective pursued is manifestly an important public interest. Moreover, under a systematic interpretation, an employing agency may impose a grade D and dismiss a civil servant pursuant to Disputed Provisions 2 or 3 only when the civil servant is found to fall within the circumstances stipulated in Disputed Provision 1—namely, “improper conduct, or violation of relevant laws and prohibitions, thereby seriously damaging the reputation of civil servants, with conclusive evidence”—or within the grounds of obvious unfitness as set forth in Article 6, Paragraph 3, Subparagraphs 1 to 3 of the Civil Servant Performance Evaluation Act. Thus, there exists a substantial connection between the restrictive means prescribed by Disputed Provisions 1 to 3 and the achievement of the above objectives. Accordingly, they do not violate the intent of Article 18 of the Constitution, which guarantees the people’s right to hold public office. 【49】
The current dual-track system of judicial disciplinary sanctions and administrative sanctions in our country does not conflict with Article 77 of the Constitution, and therefore does not give rise to the issues alleged by the petitioner concerning violations of the principles of equality or legal clarity. Nevertheless, the grounds for disciplinary sanctions set forth in Article 2 of the Civil Servant Disciplinary Act inevitably overlap with the four grounds for dismissal under a grade D performance evaluation prescribed in Article 6, Paragraph 3 of the Civil Servant Performance Evaluation Act, as well as the eight grounds for dismissal upon a special performance evaluation with two major demerits under Article 12, Paragraph 3 of the same Act. Whether an employing agency should, for the same misconduct, refer the case for disciplinary proceedings under the Civil Servant Disciplinary Act to be decided in the first instance by the Disciplinary Court, or instead impose administrative sanctions directly under the Civil Servant Performance Evaluation Act with subsequent judicial remedies before the administrative courts, is not guided by uniform standards in the normative framework. As a result, the practical approaches of different agencies are not entirely consistent, and the protection of civil servants’ rights in this respect may be less than complete. The relevant authorities are therefore advised to review and amend the pertinent laws in due course, so as to appropriately distinguish between the grounds for disciplinary and administrative sanctions, or to expressly regulate the relationship between the two procedures in cases where the same misconduct may constitute grounds for both. This would help prevent or reduce both the arbitrary choice of procedures by employing agencies and the double procedural burdens imposed on the civil servants concerned. This is hereby stated.【50】