Research on the Standards of Review adopted by Civil Service Protection and Training Commission in Protection Cases

• Main Authors: Meng-Yun Hsieh, 謝孟耘
• Other Authors: Tung-Jui Chang
• Format: Others
• Language: zh-TW
• Published: 2015
• Online Access: http://ndltd.ncl.edu.tw/handle/31453253477842443705

碩士 === 國立中央大學 === 法律與政府研究所 === 103 === In the context of the institutional guarantee, the status and the rights of a civil servant shall so be protected, whereas the Constitution has advocated for the people in their rights to hold public offices. According to Civil Service Protection Act, any civil servant finding an administrative disposition or a management measure unlawful or obviously illegitimate to him may file with Civil Service Protection and Training Commission (hereinafter, the “CSPTC”) to petition for a deliberation or re-appeal (collectively, the “Protection Cases”) and seek remedy therefrom. By adopting the methodology of case study and reference analysis, this master thesis aims to elaborate the review procedure and the subject matter of protection cases and the controversies arising from real world practices, as well as discover the standards of review and the intensity of administrative control established by CSPTC from the reasoning of deliberation and re-appeal decisions with respect to four classified issues of personnel administration including merit, discipline, salary repayment and pension. The civil service is the extension of a country’s government body. To ensure a quality and sustainable government service and civil service system, the standards of review applied to the protection cases by CSPTC may help examine the realization of remedies for each personal interest in particular and, on the whole, to reflect on the implementation of institutional guarantee given to civil servants under the Constitution. This thesis concludes that the application of classified standards of review to merit and discipline protection cases has roughly conformed to the practical and theoretical perception that the decision made is highly intuitu personae and irreplaceable. While in salary repayment cases, such application has served to balance the differences between Civil Service Pay Act and Administrative Procedure Act. In pension cases, the involvement shall be enhanced for the determination of relative causation. In conclusion, Civil Service Protection Act, functioning as the special law to the Administrative Procedure Act, demonstrates that the remedial action, which was constrained under the traditional theory of special power relationship, has been made available to civil servants and that such legal loophole of this constitutional country has been remedied and constantly improved in legislation and in practice.