Analysis Of Civil Service Re-appeal Typical Events In Chinese Taiwan Region

As society develops,the ultimate goal of the country has become respecting and guaranteeing human rights.The concepts about state governed by rule of law consist of principle of certainty of law,principle of administration by law,principle of equality,principle of proportionality,principle of the protection,principle of due process,principle of separation of powers,based on constitutional principle of democracy and principle of people’s sovereignty.The traditional privilege relation theory as the final defect in administrative law shackles the legal relations between civil servants and the country,too much emphasis civil servants on obedience obligation and the accessory position,making it difficult to according to the principle of administration by law to maintain and relief for their basic rights and freedoms. Our country Taiwan region inherits the administrative law theory form Germany and Japan for a long time,has also influenced in traditional privilege relation theory early.Until 1984,the Justice conference interpretation 187 broke through the first barrier in traditional privilege relation matters shall not dispute,the scope of civil servants can request relief gradually expanding and specification.The interpretation 396 in 1996 has clearly defined the relationship between civil servants and the nation is duty relations on public laws.The Civil Service Protection Act published in 1996,making the protection law in civil servants’ rights and interests developed to a new stage in having the competent authority-Civil Service Protection and Training Commission(CSPTC)and specific law.The Civil Service Protection Act sets up respectively the review of disciplinary sanction on civil servants’ status,position grade and pay,appeal and re-appeal of disposition on management measures and work conditions.A civil servant may file an appeal and/or re-appeal pursuant to this Act against the management measure or relevant working condition rendered by the agency where he serves,which he thinks is improper and causes the damage of his rights or interests.Decisions on civil service re-appeal published on “Examination Yuan”bulletin regularly.Having Researched with the 5944 decisions on civil servants’ re-appeal form 1997 to 2013,we can observe how to relief civil servants on management measures or disposal working conditions made by service agency.Combined with the theory of administrative law knowledge and related books about re-appeal,we can make an analysis of sorts,subjects,results of re-appeal in order to provide valuable experiences to perfect the system of appeal in Chinese mainland region.The thesis adopts research methods of case study,normative research,document research and comparative study.The re-appeal events can be classified of Punishment,Performance evaluation,Leave,Award,Translation.This article will discuss form the following aspects.The full text is divided into four chapters.The first chapter is summary on system of civil service re-appeal.First,elaborating the evolution of CSPTC set up according to Organic Act of the Civil Service Protection and Training Commission.The functions and powers of CSPTC are deliberating and deciding the re-appeal events and projecting the civil servants training.Though it has some characteristics of independent agency,the CSPTC is a quasi-judicial body in function than a independent agency.Second,introducing the subjects of holding the re-appeal rights are the civil servants refer to the paid and full-time personnel legally appointed by lawful government agencies,and the employee legally appointed by public schools and categorized as organization’s formal members.What’s more,the employees of public schools who are appointed but not confirmed in qualification prior to the enforcement of the Educators Appointment Act;the personnel remaining in office but not qualified as a civil servant after a private is converted into a public school;the personnel appointed by public enterprises according to laws;the personnel legally assigned,engaged,hired,employed,remained in employment by agencies;or the personnel passing the civil servant qualification examinations,filling the official job openings of lawful agencies or public schools,and participating in the learning or training program shall apply mutatis mutandis to the formal personnel.Then,analysis of the subject of the re-appeal,the management measures or relevant working condition rendered by the agency.Last,the CSPTC shall make a decision of case not entertained when a re-appeal pleading is not compliant with required form is not amended after the expiration of a specific period or a petitioner is ineligible for filing the petition.While a re-appeal is without merits,the CSPTC shall dismiss it by a decision;while is sustainable,the CSPTC shall revoke the original administrative action as a whole or part by a deliberation decision.The legal basis of civil servants re-appeal system is discussion in second chapter.First,the traditional privilege relation theory is been transformed or even been abandoned,the Justice conference interpretations prefer the duty relations on public laws rather than the traditional privilege relation to protect the civil servants’ fundamental rights,still admit the traditional privilege relation theory of”scrap value”.Second,administrative discretion refers to the service organs intends to realize the purpose of the administrative and the public interests,adopting various administrative measures in accordance with the specific circumstances in order to achieve legitimacy.If the service organs had error of fact and in violation of the provisions of administrative discretion not reasonable discretion beyond,discretion slack,and abuse of discretion,the CSPTC can revoke after examination.Third,the administrative organs have room for judgment concerning about making a highly-nature decision such as performance evaluation.The CSPTC generally respect its judgment besides examining the procedure,facts affirmed,any violation of general effective evaluation principle,whether taking “non-relevant with the events of the factor”into account,any violation of the principle of equality.In the general case,there are some difference in applicable laws and regulations,the location of the existence,the possibility of free judgment and the review of the court between administrative discretion and the room for judgment.The Third chapter will comment on civil servants re-appeal typical events.Firstly,The re-appeal events can be classified of Punishment,Performance evaluation,Leave,Award,Translation.In Punishment events,we make an analysis on events about the receiving gifts matter,the CSPTC was based on the perspective of interests measure to judge accept gift “appropriate” or not,that is to judge “if has interest relationship with the position” first,then consider if cause “the third person reasonable doubt ”standard. We discuss about revocation of appraisal decision in performance evaluation,the CSPTC from the principle of equality extended performance evaluation shall be governed by the principle of self-restraint.We study leave of absence to attend to continue education in leave events,the CSPTC use syllogism to apply the law,but should not explain the “business”into “personal business”.It should use multiple explanation method to explore the true meaning of”business”interpreted as”organ business”and The CSPYC used purpose explain method to offer basic factors of restrict the number of study;Researching award a medal matter in award events,the CSPTC used purpose explain method to explain laws and emphasis on service organ’s responsibility of slack behavior;Choosing the executives drop non-charger in his organ in translation events,the CSPTC beyond the enacted law to fill the loophole in the law to guarantee of human dignity,and imposed duty to give reasons on service agency.The fourth chapter is summary to the experience of Taiwan region civil servants re-appeal and enlightenment of mainland civil service appeal system.The experience conclude advanced civil servants management concept,perfect legislation;the CSPTC has tried the re-appeal events independently;Wide range of re-appeal;procedure standard,the CSPTC use syllogism,purpose explain method,interests measure,beyond the enacted law to fill the loophole in the law to explain and apply the laws.In mainland There are problems of leaders controlled by the Party,authority is not distinguished,lack of an appeal authority,narrow range of appeal acceptance,lack of due process in mainland civil service appeal system.Reference of advanced concept and experience form Taiwan civil servants re-appeal system and events,we throw out suggestions about setting up the concept of human rights protection,taking a elaborate and scientific management;establishing a competent authority of civil servants appeal;expanding the scope of the appeal acceptance and safeguarding by due process.