我國司法官退養制度之研究-正義論觀點

• Main Author: 黃悅茵
• Language: 中文
• Published: 國立政治大學
• Subjects: 退養金制度; 司法官; 正義論; Retirement Pension System; Judge; Theory of Justice
• Online Access: http://thesis.lib.nccu.edu.tw/cgi-bin/cdrfb3/gsweb.cgi?o=dstdcdr&i=sid=%22G0095921052%22.

依憲法第81條規定，法官為終身職，非受刑事或懲戒處分或禁治產之宣告，不得免職。非依法律，不得停職、轉任或減俸。復依司法人員人事條例第41條規定，實任司法官合於公務人員退休法退休規定，而自願退休時，除退休金外，並另加退養金；其辦法由司法院會同考試院、行政院以命令定之。又依司法官退養金給與辦法規定略以，未滿60歲者，給與5%。60歲以上未滿65歲者，給與10%。但身體衰弱，致不能勝任職務，經公立醫院證明者，給與60%。65歲以上未滿70歲者，給與140%。70歲以上者，給與5%。 目前於「司法人員人事條例」及「司法官退養金給與辦法」規定，司法官滿70歲應停止辦案，若在65歲至70歲間自願退休，可加領140%退養金；逾70歲未退休，等到退休時，只能加領5%退養金，亦即實任法官合於公務人員退休法規定，自願退休時，除依規定發給退休金外，另依司法官退養金給與辦法規定，按一次退休金總額或月退休金數額，發給一次退養金或月退養金，最高加發上開金額140%。現行司法官退養金給與比例係按司法官退休時之年齡作區分，並未考量司法官任職年資，恐有違平等原則。突顯我國司法官退養制度上出現三個問題，第一為我國司法官退養制度之公平合理性；第二為依年齡區分，做得愈久，加發退養金卻領得愈少；第三為停止辦案之司法官，仍領有司法官之給與，有違公平正義原則。並以羅爾斯的正義論觀點來看司法官退養制度是否符合公平正義原則。 藉由上述研究動機及問題，本論文以文獻分析法和德菲法為研究方法，通過專家一致性意見，探討「我國司法官退養制度」之合理性議題進行問卷。經由三輪德菲法問卷結果的反覆修正，最終司法官身職定義、優遇制度、退養制度、公平正義等四個面向，探討我國司法官退養制度之合理性。最後，本論文在我國司法官退養制度之實務不合理方面，提出建議修法，以期能提供政府規劃人事制度之參考與借鑒。 關鍵詞：退養金制度、司法官、正義論 === According to article 81 of ROC Constitutional Law, Judge shall hold office for life, no judge shall be removed from office unless he has been guilty of a criminal offense or subjected to disciplinary action, or declared to be under interdiction. No judge shall, except in accordance with law, be suspended from office, transferred, or liable to salary cuts. Further according to article 41 of The Statute For Judiciary Personnel, while substantive judge is conform to Civil Service Retirement Act and retire voluntarily, in addition to pension, also added retirement pension; such regulation may be issued by an order of Judicial Yuan jointly with Examination Yuan and Executive Yuan. Again, according to Regulations For Judge Retirement Pension, 5% for those who under 60-year-old. 10% for those who above 60-year-old and under 65-year-old. However, those who have a failure in health, therefore, are not qualified for this position, 60% for those who have obtained the public hospital certificate.140% for those who above 65-year-old and under 70-year-old. 5% for those who above 70%. According to The Statue For Judiciary Personnel and Regulations of Pension for Judges, judges should cease to handle cases after he or she arrives 70 years old. Judges who apply for retirement between 60 and 70 years old are eligible to have 140% pension scheme. 5% pension scheme is issued to those who choose to retire after 70. Meanwhile, based on the rules of Civil Service Retirement Act, officers volunteer to retire will be issued an amount of pension either once and for all or on a monthly basis. Apart from this, it is ruled by Regulations of Pension of Judges, pension scheme should be issued once and for all or on a monthly basis, plus 140% pension scheme, whenever possible. However, currently pension schemes for judges are different from retirement ages, instead of seniority since it might fail to meet constitutional requirements such as the principle of equality.also highlighted three questions appeared in our judge retirement system, first is the equity and reason of judge retirement system; the second is distinguishing from age, the longer of the employment is, the less of retirement pension get; the third is judge suspending case, still have judge payment, against the principle of equity and justice. And at the point of Theory of Justice of John Rawls, whether Judge Retirement system is conform to justice and reason principle. By way of the abovementioned research motive and question, the research method of this thesis is based on documentary analysis method and Delphi Technique, through unity opinion of expert, probe into the reasonable topic of “judge retirement system of our country” and to proceed questionnaire. After repeatedly amendment of three run Delphi method questionnaire result, finally, four directions of definition of judge holding office for life、system of treating with preference、retirement system、reason and justice, etc., to probe into the reason of judge retirement system of our country. Finally, this thesis raises law amendment suggestion at the aspect of unreasonable practice of judge retirement system of our country, and expect may provide reference and example to government regarding planning personnel system. Key words: Retirement Pension System、Judge、Theory of Justice