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大法官解釋表頭

(釋字第 525 號 )      友善列印PRINT  
Interpretation
J.Y.
Interpretation
NO.525 
Date 2001/5/4
Issue The directive issued by the Ministry of Civil Service repealed its previous directives extending credit provisions originally designed and intended for reserve military personnel taking the transfer examination for public office to the military reserve personnel who had voluntarily served as military officers for four years. Does the said directive violate the constitutional principle of legitimate expectation, thus being null and void?
Holding   The principle of legitimate expectation (Vertrauenschutzprinzip) concerns the protection of the people's right under the Constitution. When the public authorities' exercise of power necessitates protection of the people's legitimate expectations, such exercise of power is not abridged by the cancellation or abolishment of the administrative ordinances which grant benefits to their subjects (See Articles 119, 120 and 126 of the Administrative Procedure Act); that is, the authorities shall continue to take into consideration the protection of the people's legitimate expectations despite abolishment of or amendment to the said regulations. Once an administrative ordinance is proclaimed effective, the authority responsible for drafting or proclaiming such regulation shall protect the legitimate expectations of subjects affected by the regulation when seeking to amend or abolish such regulation pursuant to legal procedures. So unless the regulation has a predetermined period for application or there is a change of circumstance which leads to its ineffectiveness, in which instance there is no legitimate expectation, authorities seeking to abolish or amend the regulation for public interest, to the effect that such action abridges the privileges of those who had a legitimate expectation of enjoying these privileges, shall provide reasonable measures of remediation or transition period clauses with a view to minimize loss, thus complying with the Constitution's objective to protect the people's rights. The expectations of regulations that have been abolished or amended, that materially infringe upon the empowering statutes, or of regulations (for example, explanatory or determinative administrative rules) that are proclaimed based on information obtained through improper means or incorrect information provided by the aggrieved are not legitimate and thus shall not be protected; moreover, mere hope or expectation without any action in reliance of such expectation lacks the element of legitimate expectation and is outside the scope of protection.

  The Ministry of Civil Service Ordinance No.97055 of June 4, 1987, extended the application of Article 3, Subparagraph 1, of the Act Governing the Replacement Test of the Reserve Military Personnel for Civil Positions, which applied to ranked military officers only, to military reserve personnel who had voluntarily served as military officers for four years. The Ordinance is in conflict with the legislative intentions of the abovementioned Act, and the said Ministry stipulated in Ordinance No.1152248 of June 6, 1995, that: "This Ministry's Ordinances No.35064 of November 15, 1975, and No.97055 of June 4, 1987, which apply the Act Governing the Replacement Test of the Reserve Military Personnel for Civil Positions and its provisions in relation to remunerations to active-duty military officers who have graduated from special military colleges and college graduates who have volunteered to serve for four years as military officers, shall no longer be applied from this date." The aforementioned Ordinance provides no transition period, thus military personnel who have served their term of office but have not taken the examination may be denied the credit provisions under the Act. However, no administrative ordinance should be expected to be of perpetual application; thus, subjects to which the regulations apply must meet the requirement of legitimate expectation by satisfying the objective test of acting in reliance of their expectations during the application period in order to fall within the protection. Although the aforementioned Ordinance of June 4, 1987, by the Ministry of Civil Service may be a foundation for legitimate expectation, it cannot be said that all people who have served the required four-year military service will enjoy the benefit of the examination and credit provisions irrespective of the abolishment of the abovementioned Act. Therefore if there is no objective manifestation of reliance at the time the relevant regulation ceases its operation, then there can be no claim of legitimate expectation. Regarding the case at hand, since the applicant had not taken any transfer examination for public office or applied for credit during the operation period of the credit provisions, the aforementioned requirement had not been satisfied. The relevant authority's Ordinance of June 6, 1995, which declared inapplicable the credit provisions of the Act Governing the Replacement Test of the Reserve Military Personnel for Civil Positions complies with the intent of the said Act and does not infringe upon the Constitution.
Reasoning   A state governed by the rule of law (Rechtsstaat) is one of the fundamental principles of the Constitution. The paramount principle of a state governed by the rule of law (Rechtsstaat) is the protection of the people's rights, maintenance of legal order and adherence to the principles of honesty and goodwill. The people's legitimate reliance on the results of public authorities' exercise of power shall be properly protected by the law; such is the rationale of the principle of legitimate expectation (Vertrauenschutzprinzip) and the legislative intention behind provisions such as Articles 119, 120 and 126 of the Administrative Procedure Act. The effect of the abolishment or amendment of administrative regulations (including ordinances and explanatory or determinative administrative rules) is no less than the cancellation or abolishment of administrative acts under the abovementioned Administrative Procedure Act. So except when the regulation has a predetermined application period or the authority determines it should cease application due to a change of circumstance, in which instance there is no legitimate expectation, the authority responsible for drafting or proclaiming a regulation may amend or abolish it pursuant to legal procedures, but shall take into consideration and provide proper guarantee to the subject's legitimate privileges, in order to comply with the constitutional objective of protecting the people's rights.

  The rulemaking or proclamation authority may abolish or amend regulations according to legal procedures and for reasons of public interests, that is, the interests of the society as a whole in preference to the interests of individuals to which the regulation applies. In the event the people have relied on the effectiveness of the said regulations to their detriment and the existing regulations offer no remediation provisions (such as Article 48 (3) of the Tax Levy Act), the rulemaking or proclamation authority should adopt reasonable remediation measures or transition period clauses in order to protect such legitimate expectation of the people and to minimize loss. However, the principle of legitimate expectation does not apply to any of the following circumstances: (1) regulations that have been abolished or amended that materially infringe upon the empowering statutes; (2) the relevant regulations (for example, explanatory or determinative administrative rules) that are proclaimed based on information obtained through improper means or incorrect information provided by the aggrieved which are defective and unworthy of protection; or (3) the mere hope or expectation of the subjects, to whom the regulations apply, without any action in reliance of such expectation. No regulation is perpetual in its application, and the fact that regulations may be amended or abolished in the future is foreseeable by subjects to whom they apply, therefore the subjects must meet the requirement of legitimate expectation by satisfying the objective test of acting in reliance of their expectations. Conversely, if regulations are abolished or restricted in their application for the convenience of administration rather than based on public interests, or there is unreasonable preferential treatment of some subjects or the motive for such action is improper, the interests of subjects to whom the regulations apply shall definitely be protected by the Constitution.

  The Ministry of Civil Service Ordinance No.97055 of June 4, 1987, extended the application of Article 3, Subparagraph 1, of the Act Governing the Replacement Test of the Reserve Military Personnel for Civil Positions, which applied to ranked military officers only, to military reserve personnel who had voluntarily served as military officers for four years. The Ordinance is in conflict with the legislative intentions of the abovementioned Act, and the said Ministry stipulated in Ordinance No.1152248 of June 6, 1995, that: "This Ministry's Ordinances No.35064 of November 15, 1975, and No.97055 of June 4, 1987, which apply the Act Governing the Replacement Test of the Reserve Military Personnel for Civil Positions and its provisions in relation to remunerations to active-duty military officers who graduated from special military colleges and college graduates who have volunteered to serve for four years as military officers, shall cease its application from this date." Regardless of whether the Ministry's Ordinance of June 4, 1987, infringes upon the provisions of the abovementioned Act, interest in the preservation of an open and competitive examination system stipulated by the Constitution and of the credit system of ordinary civil officials is apparently greater than the granting of special benefits to certain military officers who have served a longer term of service. The Ministry's Ordinance of June 6, 1995, which declared ineffective its Ordinance of 1987 provides no transition period which may lead to the result that military personnel who have served their term of office but have not taken the examination may be denied the credit provisions under the Act. Although the appropriateness of such an Ordinance may be arguable, it is a measure in furtherance of the public interest. The Ministry of Civil Service Ordinance of June 4, 1987, though it may be a basis for legitimate expectation, is only a replacement measure for recruiting military personnel, and since it is incompatible with statutory provisions, it cannot be expected to have perpetual application-- even individuals who have acted in reliance of their legitimate expectation cannot assert that they have suffered loss due to their reliance on the termination of such measure. Regarding the case at hand, sitting for a transfer examination or applying for a credit qualification are objective acts manifesting reliance on the benefits of the credit provisions at the commencement of military service. Therefore, if the applicant had not passed the examination nor obtained qualification for a public office upon the cessation of application of the credit provisions (the applicant in this case did not pass the special examination for military reserve personnel to transfer to public office until 1997), it cannot be said that there was objective manifestation of reliance when the regulations were abolished, hence no protection was guaranteed. The Ordinance of June 6, 1995, by the relevant authority, which abolished the credit provisions under the Act Governing the Replacement Test of the Reserve Military Personnel for Civil Positions is consistent with the legislative intention of the Act and does not infringe upon the Constitution.

' Translated by Wei-Feng Huang of THY Taiwan International Law Offices.
Opinion
(Files)
Chinese only
 

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