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(釋字第 730 號 )      友善列印PRINT  
Interpretation
J.Y.
Interpretation
NO.730  [ Calculation of the number of years working for government for the pension of public school teachers and employees who retired but were later hired by the government again ]
Date 2015/6/18
Issue Is Article 19, Section 2 of the Implementing Regulations of the Act Governing the Retirement of Public School Teachers and Employees unconstitutional?
Holding Article 19, Section 2 of the Implementing Regulations of the Act Governing the Retirement of Public School Teachers and Employees states that, for public school teachers and employees who retired but were later hired by the government again, the number of years working for government at their second retirement should include the number of years for their first government employment, but the total number of years working for government cannot exceed the ceiling set by Article 5 and Article 21-1, Section 1 of the Act Governing the Retirement of Public School Teachers and Employees. Article 19, Section 2 of the Implementing Regulations is hereby declared unconstitutional, as it restricts the rights of teachers and employees but is not concretely and clearly authorized by a statute. The property rights of these teachers and employees, as protected by Article 15 of the Constitution, are infringed, and the principle of statutory reservation, as stipulated by Article 23 of the Constitution, is violated. Therefore, Article 19, Section 2 of the implementing regulations should lose its legal effect no later than one year from the date on which this interpretation is announced.
Reasoning Article 15 of the Constitution states that property rights of the people should be protected. Public school teachers’ and employees’ right to receive pension funds in accordance with the Act Governing the Retirement of Public School Teachers and Employees (hereinafter Disputed Statute) is a property right protected by the Constitution. Under the principle of statutory reservation stipulated in Article 23 of the Constitution, only statutes or regulations promulgated by administrative offices with concrete and clear authorization from the Legislative Yuan may restrict such property rights. (J. Y. Interpretation No. 443 and No. 488.) The legal provision disputed by the petitioners— Article 19, Section 2 of the Implementing Regulations of the Act Governing the Retirement of Public School Teachers and Employees—states that, for public school teachers and employees who had once retired but were later hired by the government again, the number of years working for government should include the number of years of their first government employment, but the total number of years working for government cannot exceed the ceiling set by Article 5 and Article 21-1, Section 1 of the Disputed Statute. (hereinafter Disputed Provision) As Article 19, Section 2 of the Implementing Regulations restricts teachers’ and employees’ right to apply for pension funds in accordance with the Disputed Statute, it requires concrete and clear authorization by a statute.

The first half of Article 5, Section 2 of the Disputed Statute states that the lump-sum pension payment should be calculated in the following manner: The salary earned by a government employee at the same rank as the retiring government employee on the date of the retirement should be half of the base amount or unit (ji shu). Each year that the retiring employee spent working for government would entitle him or her to receive one and a half times the base amount or unit. The maximum amount of the lump-sum pension payment is 53 units for 35 years of working for the government. The first half of Article 5, Section 3 states that the monthly pension payment should be calculated in the following manner: The salary earned by a government employee at the same rank as the retiring government employee on the date of the retirement should be half of the base amount or unit (ji shu). Each year that the retiring employee spent working for government would entitle him or her to receive 2 percent of the base amount or unit every month. The maximum amount for the monthly pension payment is 70 percent of the salary earned by a government employee at the same rank on the retiring government employee’s date of retirement. Such maximum amount for the monthly pension payment is given for 35 years of working for the government. The legislative intent is to provide for the base amount, or the unit, for the calculation of pension funds, and cap such calculation at 35 years of working for the government. Sections 2 and 3 of Article 5, however, do not clearly specify what type of years working for government should be used in the calculation or how to calculate the number of years working for government for public school teachers and employees who retired from the government but were later hired by the government again. Article 21-1, Section 1 of the Disputed Statute states that for public school teachers and employees who had worked for government both before and after the Disputed Statute was amended, the number of years working for government before and after the first retirement should be combined for the purpose of calculating the amount of the pension funds due. Further, the maximum number of years working for government before the Disputed Statute was amended was thirty, and the maximum number of years working for government after the amended Disputed Statute took effect was thirty-five (inclusive of the years working for government before the Disputed Statute was amended). Therefore, the Disputed Statute stipulates that the calculation should be made in a way that is most favorable for retiring public school teachers and employees.

The legislative intent of Article 21-1, Section 1 of the Disputed Statute is to resolve the transition problem that arises from the reform of the pension system of public school teachers and employees stipulated by Article 8 of the Disputed Statute. Some teachers and employees worked for government both before and after Article 8 of the Disputed Statute was amended. Article 21-1, Section 1 states that the number of years working for government before and after the Disputed Statute was amended should be combined for the purpose of calculating the amount of pension funds. However, it does not clearly state that public school teachers and employees who had retired once and later hired by the government again should be subject to the maximum of 35 years working for government when the amount of pension funds was calculated. Article 14 of the Disputed Statute states that public servants who had retired in accordance with the Disputed Statute may be hired by the government again; that such public servants do not have to pay the pension that they receive back to the government; and that the years at their first government job cannot be counted when calculating their pension funds at their retirement from the second government job. In other words, Article 14 of the Disputed Statute calculates the years working for government separately for each government job; it does not stipulate a ceiling on the number of years working for government when the years working for government for the two government jobs are combined.

Article 14 of the Disputed Statute separates the years working for government before first retirement and the years working for government during the second government job, but does not authorize Article 19, Section 2 of the Implementing Regulations. Neither can the statutory authorization be found in Article 5, Sections 2 and 3 or Article 21-1, Section 1 of the Disputed Statute. The only statutory authorization for Article 19, Section 2 of the Implementing Regulations is the generic authorization in Article 22 of the Disputed Statute. Therefore, Article 19, Section 2 is not concretely and clearly authorized by a statute. In addition, it is impossible to derive from the statute as a whole the interpretation that the Legislative Yuan intended to stipulate a ceiling for the number of years working for government for retiring teachers and employees who had retired once from the government and were later hired by the government again. Article 19, Section 2 of the Implementing Regulations sets the ceiling for the number of years working for government at thirty-five when the retiring teacher or employee has already retired once from the government. It also adds a restriction on such a retiring teacher’s or employee’s right to a statutory pension, hurting the property rights protected by Article 15 of the Constitution, and is inconsistent with the principle of statutory reservation as provided by Article 23 of the Constitution.

In order to take care of retired public school teachers and employees and to reasonably balance the treatment of current and retired public school teachers and employees, many factors must be considered in terms of establishing a system for the retirement of the public school teachers and employees who had already retired once from the government. Such factors include the number of years working for government that do or do not count toward the pension, whether the years on the first government job should be treated separately or combined with the years on the second government job, how to avoid imbalance between public school teachers and employees who had already retired once from the government and those who have the same number of years working for government but have not retired, and whether it is necessary to, on the basis of fairness, including all public school teachers’ and employees’ rights and interests in retirement, and public finance, stipulate a ceiling for the maximum number of years working for government. All of these factors should be adequately considered, and the system should consist of statutes or implementing regulations concretely and clearly authorized by statutes. The relevant government offices should review the status quo and establish a new system no later than one year from the date on which this interpretation is announced. If no such a system is established by then, the current system loses its legal effects.

The following claims made by the petitioners are dismissed on procedural grounds. One petitioner claims that Tui San Zi Letter No. 2010757 issued by the Ministry of Civil Service, Examination Yuan on April 10, 2001 (hereinafter Disputed Letter), is inconsistent with Articles 18 and 23 of the Constitution. On the one hand, the petitioner sought redress through administrative litigation and received Su Zi Judgment No. 100, rendered by the Taipei High Administrative Court in 2010. The petitioner appealed, but the appeal was dismissed for failing to state concretely how the appealed judgment was inconsistent with the law. (Supreme Administrative Court Cai Zi Ruling No. 1817) Therefore, the petitioner should have chosen Su Zi Judgment No. 100, rendered by the Taipei High Administrative Court in 2010, as the object for constitutional interpretation by the Judicial Yuan. Whereas the Disputed Letter addressed the Act Government the Retirement of Public Servants, Su Zi Judgment No. 100 dealt with the Act Government the Retirement of Public School Teachers and Employees and the implementing regulations. Therefore, the Disputed Letter cannot be the basis for applying for a constitutional interpretation. The petitioner claimed that Article 19, Section 1 of the Implementing Regulations violates Articles 15, 23, and 172, and therefore sought a constitutional interpretation. This Court does not think the application states clearly why Article 19, Section 1 violates the Constitution. For these reasons, the applications do not meet the requirements set out in Article 5, Section 1, Paragraph 2 of the Constitutional Interpretation Procedure Act (sifayuan dafaguan shenli anjian fa) and should be dismissed in accordance with Article 5, Section 3 of the same Act.
Editor's Note Summary of facts:
1. One petitioner Lin Jing-zi was an employee of Tainan Normal Professional School until she retired in March 1985. Later she was hired by the National Tainan University and retired in January 2009. In accordance with Article 19, Paragraph 2 of the Implementing Regulations (hereinafter the Disputed Provision) for the Act Governing the Retirement of Public School Teachers and Employees (hereinafter the Disputed Statute), the calculation of seniority towards her second retirement shall not exceed the maximum allowed under Articles 5 and 21-1, Paragraph 1 of the Disputed Statute. The Petitioner sued and having exhausted judicial remedies, alleged that the Disputed Provision, as applied by the final judgment, and Memorandum Tui San Zi No. 2010757, issued by the Ministry of Civil Service, Examination Yuan on April 10, 2001, are inconsistent with the Constitution and petitioned for a constitutional interpretation.

2. The other Petitioner, Lu A-fu, was employed by Taiwan Power Company. After his retirement, he was appointed as a professor at the National Hsinchu Education University. The petitioner later retired in 2009 and the calculation of his years working for government for pension was subject to similar limitation by the Disputed Provision. The Petitioner litigated and exhausted judicial remedies. The Petitioner alleged that the Disputed Provision applied by the final judgment and Article 19, Paragraphs 1 and 2 of its Implementing Regulations are inconsistent with the Constitution and filed the petition for interpretation.

Opinion
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