Note: 
This summary constitutes no part of the Judgment but is prepared by the Clerk’s Office of the Constitutional Court only for the readers’ reference.
Original paragraph numbers that the summarized texts correspond to are put into lenticular brackets after each paragraph.

Headnotes

In this Judgment, the Taiwan Constitutional Court (TCC) declared Article 37, Paragraph 1, Subparagraph 2 of the Enforcement Rules of the National Health Insurance Act and Article 39, Paragraph 1, Subparagraph 2 of the same Act unconstitutional. The TCC ruled that the disputed provisions regulating the suspension and resumption of National Health Insurance coverage without being specifically authorized by a statute, consequently violated the Gesetzesvorbehalt principle under the Constitution. However, the TCC also ruled that imposing compulsory resumption and a three-month duration before re-suspension of coverage upon returning citizens, which are stipulated in the disputed provisions, are of public interest and proportionate, thus not in violation of the principle of proportionality and right to equality/equal protection under the Constitution. 

Background Notes

The petitioner resides abroad on a long-term basis and has applied for the suspension of National Health Insurance (NHI) coverage in accordance with the Enforcement Rules of the National Health Insurance Act (hereinafter, the “Enforcement Rules of the NHI Act”). However, when returning to Taiwan in 2015 and 2016, the petitioner did not resume NHI coverage, which was required by the Enforcement Rules of the NHI Act, and was later ordered to pay up the premiums by the National Health Insurance Administration, Ministry of Health and Welfare. As a result, the petitioner initiated an administrative litigation, but has lost the case in the final court decision. The petitioner later filed for constitutional review in 2020, arguing that: (1) the regulations applied by the final court decision, Article 37, Paragraph 1, Subparagraph 2 and Article 39, Paragraph 2 of the Enforcement Rules of the National Health Insurance Act has exceeded the authorization of the National Insurance Act; (2) the regulations’ uniform application to all returning citizens regardless of the duration of their stay and (3) the regulations’ differential treatment between government employees overseas and the general public has violated the principle of proportionality, causing undue restriction on people’s right to property. 

Summary of the Judgment 

Holding

1. The suspension and resumption of National Health Insurance (hereinafter “NHI”) coverage affect the rights and responsibilities of the insured. They also involve important public interests. Accordingly, the specifics of the suspension and resumption of NHI coverage shall thereby be stipulated by law or regulation specifically authorized by a statute to conform to the requirement of the Gesetzesvorbehalt principle. Article 37, Paragraph 1, Subparagraph 2 of the Enforcement Rules of the NHI Act (hereinafter “said provision I”)^[1]   and Article 39, Paragraph 1, Subparagraph 2 of the Enforcement Rules of the NHI Act (hereinafter “said provision II”)^[2]   violate the Gesetzesvorbehalt principle, because they regulated the rights and responsibilities on the suspension and resumption of NHI coverage, without being specifically authorized by a statute. The said provisions I and II shall cease to be effective no later than two years after the pronouncement of this Judgment. 
    
2. Legal elements regarding the suspension and resumption of NHI coverage set by the said provisions I and II are not in conflict with the principle of proportionality enshrined in Article 23 of the Constitution, the right to manage one’s health risk autonomously guaranteed by Article 22 of the Constitution, and the right to property protected by Article 15 of the Constitution; nor does it violates the right to equality/ equal protection enshrined in Article 7 of the Constitution.

Reasoning

The people’s rights enumerated by the Constitution may be restricted by law, provided that it meets the requirements stipulated in Article 23 of the Constitution. In regards to the measures of Leistungsverwaltung (policy concerning benefit to the people), if any significant matter is involved, it should be formulated in accordance with law or regulation specifically authorized by a statute. ^[3] 【10】

Admittedly, the NHI is a measure of Leistungverwaltung for providing the people with medical care. However, considering that it is also a kind of compulsory social insurance, it is inevitable to restrict the people’s right to manage their health risks autonomously, which is guaranteed by Article 22 of the Constitution (e.g., the freedom to cope with health risks through using one’s savings, purchasing commercial insurance, or be provided by family). The NHI also affects the people’s right to property when imposing the responsibility of premium payment. 【11】

Citizens who stay overseas for reasons such as working or studying abroad should be allowed to suspend their NHI coverage. Whether they should be forced to resume their NHI coverage upon their temporary return, and if so, when they can re-apply for suspension of coverage, also concerns the issue of compulsory insurance subscription. The aforementioned aspects inevitably affect people’s right to manage their health risks autonomously guaranteed by Article 22, and the right to property enshrined in Article 15 of the Constitution. 【12】

However, there is a massive amount of Taiwanese nationals that reside abroad on a long-term basis. Them paying premiums during their temporary return and using NHI resources will influence the fairness of the NHI system and the soundness of the state’s finance as a whole, which both amount to significant matters in the public interest. Therefore, in according to the Hierarchical Gesetzesvorbehalt principle demonstrated in J.Y. Interpretation No. 443, the Gesetzesvorbehalt principle shall apply to the matters regarding the rights and responsibilities in NHI coverage suspension and resumption of the Taiwanese nationals oversea. That is to say, the substantial content of the aforementioned matters shall be formulated based on law or regulation specifically authorized by a statute, and shall be in accordance with the principle of proportionality and principle of equality enshrined in Articles 23 and 7 of the Constitution. 【12】

The said provisions I and II are formulated under the authorization of Article 103 of the National Health Insurance Act (hereinafter, the “NHI Act”), which stipulates that “The Competent Authority shall prepare the Enforcement Rules of this Act.” However, since this is an enabling provision in general terms, and viewing comprehensively, the NHI Act did not mention a word regarding the matters on suspension and resumption of NHI coverage, even if we recognize leniently that these matters were under implied authorization by the NHI Act, one cannot deduce from the NHI Act’s legislative reason^[4]  and its entirety, any guideline or conceptual framework on how the competent authority shall prepare the enforcement rules on these matters, much less they can be foreseen by the general public. 【15】

On the issue of whether the said provisions I and II violated the right to manage one’s health risk autonomously, right to property, and right to equality/ equal protection, considering that the NHI system is established for fulfilling the obligations entrusted by the Constitution, the legitimacy in restricting the people’s freedoms and rights under this purpose, is higher than the legitimacy in restricting people’s right purely out of public interest under Article 23 of the Constitution. For this reason, the judiciary has to give more respect to this cause when exercising its judicial review on the aforementioned restriction’s proportionality. As social policies involve allocating and facilitating the nation’s resources, the political department has to take into account the overall political, economic, and social factors. Under the principle of separation of powers, it inherently wields a larger discretion in its formulation of regulations. Besides, the differential treatment deployed by the said provisions I and II does not implicate suspect classification. Therefore, the said restriction and differential treatment, shall be deemed in conformity with the principle of proportionality and the right to equality/ equal protection, if they serve the purposes of pursuing legitimate public interest, and if their means are rationally related to such purposes.【17】

Per the said provisions I and II, a person who stays overseas for over six months shall resume NHI coverage from the date of returning to Taiwan. But they can only re-apply for suspension of coverage three months after they resume their NHI coverage. The purpose of the said provisions I and II are to provide health care services during the temporary return of overseas citizens who suspended their NHI coverage while striking an equilibrium between “addressing the purpose with moderation” and “avoiding the imbalance in the responsibility of premium payment.” The purpose of the said provisions I and II is undoubtedly of legitimate public interest. 【18】

Although the measure of compulsory resumption of coverage (stipulated by the said provision II) applies uniformly to people returning temporarily to Taiwan from the date of return, without distinguishing whether or not they actually use the NHI resources, since the NHI system is a kind of compulsory social insurance, people have the duty to join and make premium payments once they are eligible to such insurance. Moreover, compulsory resumption of coverage upon their return only restores their insurance, rather than imposing additional premiums. Therefore, the said measure and the aforementioned purpose are rationally related.【18】

On the other hand, the measure of a mandatory three-month duration of resumption before re-applying for suspension of NHI coverage (stipulated by the said provision I), which implies a forced three-month payment of premiums, only poses a limited restriction on people’s right to property. In addition, this measure also prevents the moral risk of people resuming and suspending NHI coverage with the purpose of returning to Taiwan temporarily just for its medical services. This measure undeniably safeguards the purpose of maintaining fairness in the NHI system and the soundness of the state’s finance. Consequently, this measure and its purpose are rationally related. For the abovementioned reasons, the said provisions I and II do not contradict the principle of proportionality enshrined in Article 23 of the Constitution. 【18】

In regards to the differential treatment in resumption and re-suspension of NHI coverage between the general public and government employees overseas (along with their spouse and children), where the latter is exempted from the application of said provision II by Article 39, Paragraph 2 of the Enforcement Rules of the NHI Act ^[5], it is for the purpose of government employees overseas to conduct their official duties smoothly,  because they and their family dependents cannot choose freely on the dates of their temporary business returns. It is a purpose of legitimate public interest. Even though the general public is treated differently (excluded from this exemption), this differential treatment is rationally related to the purpose, thus not in contradiction with the right to equality/ equal protection enshrined in Article 7 of the Constitution.  【19】

[1] Article 37, Paragraph 1 (with Subparagraph 2) of the Enforcement Rules of the NHI Act: “In any one of the following circumstances, the beneficiary may apply for suspension of coverage through the group insurance applicant which shall complete a Suspension of Coverage Application Form and submit it to the Insurer with payment of premium temporarily suspended during the period when the beneficiary is missing or abroad while the insurer should also temporarily suspend benefits for the beneficiary:
        (…)
       2. Scheduled to stay overseas for over six months. However, any person who has suspended insurance coverage due to traveling abroad is only permitted to re-apply for suspension of coverage three months after such person resumes the coverage after returning to Taiwan.”

[2] Article 39, Paragraph 1 (with Subparagraph 2 ) of the Enforcement Rules of the NHI Act: “The beneficiaries shall proceed in the following manner after the ground for suspension of coverage ceases to exist:
         (…)
        2. A person who is scheduled to travel abroad for over six months shall resume coverage from the date of returning to Taiwan. However, a person who travels overseas for less than six months and returns to Taiwan at an earlier date shall revoke coverage suspension upon the day when he/she arrives at Taiwan and make up the premium payment.”

[3] For reference, see J.Y. Interpretation No. 443. 

[4] Article 1 of the NHI Act: “This Act is enacted to promote the health of all nationals, to administer national health insurance (hereinafter referred to as “this Insurance”) and to provide health services.
This Insurance is compulsory social insurance. Benefits shall be provided during the insured term under the provisions of this Act, in case of illness, injury, or maternity occurred to the beneficiary.”

[5] Article 39, Paragraph 2 of the Enforcement Rules of the NHI Act:
“Where a government employee overseas and his or her spouse and children who suspended coverage due to overseas assignment return to Taiwan for official duty for less than 30 days and hold a supporting document issued by the authority with which he or she is employed, such employee may be exempted from terminating the suspension and resuming coverage as required under Subparagraph 2 of the preceding paragraph. However, the time such employee stays in Taiwan may not be included in the calculation of the time that he or she spends abroad.”