▍I. The Historical Origin and Development of the Amendments to the Public Functionary Discipline Act

The Public Functionariesare the very foundation of rule of law and democracy for a country. Every decrees and public affairs of the government are dependent on the functionaries’implementation and enforcement. Based on the context, if the functionariesviolate the laws and commit an act of dereliction of duty or indiscipline behaviors, not only the country will not progress but the people will also lose their confidence on the public service system. Hence, the legal system development of the Public Functionary Discipline Act can be a method to examine whether a country makes good progress for its rule of law and ensures the protection of human rights be satisfied.

Since the Public Functionary Discipline Actwas amended on May 3rd 1985, our political, economic, and social structures have been through significant developments and changes. The people have much more higher expectation that the Public Functionary Disciplineshould be more effective in practice. The Honorable Justices have also made several interpretations regarding the legal system of the Public Functionary Discipline, such as the Judicial Yuan Interpretations No. 396, No. 433, and No. 583. In order to achieve perfection of the legal system of the Public Functionary Discipline, the Judicial Yuan had proposed the bills of the amendments to the Public Functionary Discipline Actand submitted to the Legislative Yuan in 2000, 2002, 2005, and 2010 for further review. But, because of the discontinuous sessional meeting in the Legislative Yuan, the amendments could not come into force. However, in order to better the legal system of the Public Functionary Discipline, the Judicial Yuan had convened the bill drafting meeting for thirty times since November, 2013. For ensuring the disciplinary sanctions more effective and efficient, the composition more court-like, and procedures more refined, the Judicial Yuan has proposed the amendments to the Public Functionary Discipline Acton September 5th 2014, undergoing through the 7th session of the 8th term in the Legislative Yuan for third reading. The President has promulgated the amendments on May 20th 2015 and it has come into force on May 2nd 2016.

In addition, since comments and suggestions came from all sectors of the society afterthe provisions of the Disciplinary Chamber of the Judiciary under the Judges Act had taken effect on July 6th 2012, the Judicial Yuan had tried to further proposed the amendments to some provisions of the Judges Act. But, because of the discontinuous sessional meeting in the Legislative Yuan, the amendments could not be done. In 2017, after the National Congress and Judicial Reform, as the positive response to the expectation from all sectors of the society to the judicial reform, the Judicial Yuan re-suggested to make the new amendments to the Judges Act for enhancing the public confidence and trust in the judiciary. And, after many public hearings and consultations were held for the bill drafting to the Judges Act, and many comments and opinions were received, the Judicial Yuan passed the bill, “the amendments to the Article 71, Section 2 (Remuneration Chart for Judges) and other Articles of the Judges Act,” in the 171st regular meeting of the Judicial Yuan on July 19th 2018. Furthermore, after minor corrections, the bill was jointly proposed to Legislative Yuan by the Judicial Yuan, the Executive Yuan, and the Examination Yuan. The Legislative Yuan passed the bill at the third reading on June 28th 2019 and the President promulgated it on July 17th 2019. The provisions of the Disciplinary Chamber of the Judiciary take effect on July 17th 2020.

Since the Public Functionary Disciplinary Sanction Commission is actually a kind of court, it will be inappropriate to name it as a commission. Also, because the amendments to the Judges Act have been passed on July 17th 2019 and the Disciplinary Chamber of the Judiciary has been set under the Disciplinary Court, the Disciplinary Court (the Public Functionary Disciplinary Sanction Commission) has the authority among not only the disciplinary sanctions but also the Disciplinary Chamber of the Judiciary. For fulfilling the functions of the error correction mechanism and the right protection, under the trial of the Functionary Disciplinary Sanction, if the party refuses obedience to the referee, the appealing proceedings will be provided for his/her further remedy. Therefore, the Judicial Yuan proposed the bill for amending the Public Functionary Discipline Act, and the Public Functionary Disciplinary Sanction Commission would be replaced by the Disciplinary Court, which would have the trial system for remedy. Some significant reforms of the Public Functionary Discipline Act  are as the followings: Renaming the Organization as the Disciplinary Court, the establishment of one-level and two-instance system, the effective and efficient enhancement of disciplinary sanctions in practice, adoption of the open judicial proceedings, taking care of the right protection for the functionaries, re-amending the rehearing proceedings, and clarifying the practical operation of the legal system. The bill of the Public Functionary Discipline Act  had been submitted to the Legislative Yuan for further review and has been passed the third reading in the 14th session of 10th term of the Legislative Yuan. The President has promulgated it on June 10th 2020. The Judicial Yuan would take it into force on July 17th 2020.

▍II. The Compositions of the Disciplinary Chamber and the Disciplinary Chamber of the Judiciary

A. The Composition of the Disciplinary Chamber

According to the Article 4 of the Disciplinary Court Organization Act, the Disciplinary Court shall establish the Disciplinary Chamber, composed of several divisions, depending on the caseloads and needs, except that the laws have set the special and specific requirements. In the first instance of the Disciplinary Chamber, the judicial proceedings and adjudications shall be conducted by a collegial panel, consisted of three judges, and the senior one would be the presiding judge. If the qualifications are the same, the elder one would be the presiding judge. In the second instance of the Disciplinary Chamber, the judicial proceedings and adjudications shall be conducted by a collegial panel, consisted of five judges, and the president of the Disciplinary Court shall be the presiding judge. If the president is not available, the senior judge shall be the presiding judge, and if the qualifications are the same, the elder one would be the presiding judge.

B. The Composition of the Disciplinary Chamber of the Judiciary

According to the existing Article 47, Section 1, of the Judges Act, the Disciplinary Court shall establish the Disciplinary Chamber of the Judiciary. In the first instance of the Disciplinary Chamber of the Judiciary, the judicial proceedings and adjudications shall be conducted by a collegial panel, in the Disciplinary Court, with one judge as the presiding judge and the other two judges as the associate  judges. In the trial of the disciplinary cases against the judges, two expert lay judges shall be added to the panel. In the second instance of the Disciplinary Chamber of the Judiciary, the judicial proceedings and adjudications shall be conducted by a collegial panel, composed of the president of the Disciplinary Court, as the presiding judge, and four other judges as associate  judges, including two judges from the Supreme Court, one judge from the Supreme Administrative Court, and one judge from the Disciplinary Court. Pursuant to the Article 89, Section 8, of the Judges Act, and the Article 44, Section 1, of the Implementing Regulation of the Judges Act, the foregoing rulings shall apply mutatis mutandis to the disciplinary cases against the prosecutors.  

▍III. The Party be Disciplined by the Disciplinary Chamber and the Disciplinary Chamber of the Judiciary

A. The Disciplinary Chamber

The Disciplinary Chamber is in charge of the functionary  discipline cases. Although the Public Functionary Discipline Act  does not define the legal meaning of “functionary”, because of the adoption of the generalized definition of functionary in practice, the party could be disciplined by the Disciplinary Chamber include:

1. The Political Appointees
2. The Permanent (full-time) Employees who are appointed or assigned by the statutory authority
3. The Presidents/Principles, and the Faculties who are also in charge of administrative affairs, in the national universities or public schools
4. The Researchers who are also in charge of administrative affairs in the pubic research institutes, and the Professionals in the institutions of the public social education
5. The Persons, assigned by the government or other public legal persons, as the representative to carry out his/her duties in government corporations
6. The Elected Local Governor
7. The Military Personnel

B. The Disciplinary Chamber of the Judiciary

The Disciplinary Chamber of the Judiciary is in charge of the following cases: “disciplinary sanctions against judges and prosecutors,” “the relief in the event of the judge’s complaints toward the disciplinary dispositions,” “the relief in the event of supervision performance that impacts on trial independence of the judge,” and “petition of the president of court for a declaratory resolution that the affirmation by the Council of Judges violates the law.” The main party on trial under the processes should be judge or prosecutor.

▍IV. The Dispositions of the Disciplinary Sanctions

A. The Disciplinary Chamber

In accordance with the Article 9 of the Public Functionary Discipline Act, the dispositions of disciplinary sanctions to the functionaries  include:

1. Removal from the FunctionaryDuties
2. Dismissal from Office
3. Deprivation or Reduction of Pension (i.e., Retirement Allowance, Maintenance Payment to Military Officials)
4. Suspension
5. Demotion
6. Reduction in Pay (Salary Cut)
7. Fine
8. Recording of Demerits
9. Reprimand

The disciplinary sanctions of deprivation or reduction of pension are only to the functionary who has left from the office due to retirement or other reasons. The disciplinary sanctions of suspension, demotion, and recording of demerits are not applied to the political appointees. In addition, the disciplinary sanctions of fine could be combined with disciplinary sanctions of removal from the functionary  duties, dismissal from office, suspension, demotion, recording of demerits, and reprimand at the same time.    

B. The Disciplinary Chamber of the Judiciary

In accordance with the Article 50, and the Section 1 of the Article 89, of the Judges Act, the dispositions of disciplinary sanctions, to the judges, include:

1. Removal from Judiciary/Prosecutor Duties and Loss of the Functionary Appointment Qualifications
2. Dismissal from Office: in addition to dismissal from the incumbent office, all appointments are suspended for a period of time, not less than one year but not more than five years
3. Removal from the Judgeship duties and transfer to a position other than the Judiciary/Prosecutor
4. Deprivation of Retirement Allowance and Maintenance Payment to Military Officials, or just the Maintenance Payment Deprivation
5. 10% to 20% Off for the Reduction of Pension, including Retirement Allowance and Maintenance Payment to Military Officials
6. Fine: in the amount of no less than one month but no more than one year of the total current monthly remuneration or the last monthly remuneration while in service
7. Reprimand

• Release Date : 2019-11-06
• Update : 2021-02-08