| Summary: | 碩士 === 中原大學 === 財經法律研究所 === 103 === Due to traditional “special power relationship” theory, relationship between soldiers and nation is unequal. After World War II, with the impact of constitutional thoughts, “special power relationship” theory has been replaced by “special law relationship”. After the liberated interpretation of Justices of the Constitutional Court, Judicial Yuan, identity prevention and right relief of public officials in Taiwan are no longer restricted by “special power relationship”. According to interpretation No. 430 of Grand Justices of Judicial Yuan, “soldiers are public officials in broad sense and they have functional relationship with nation upon public law. In the condition of legal practice of military command right and reward &; punishment right, soldiers’ legal rights shall not be different from other public officials”. Hence, although “Constitution of the Republic of China (Taiwan)” allows the necessary restriction on soldiers’ basic rights upon military duty, it should be based on the conditions regulated in Article 23 of “Constitution of the Republic of China (Taiwan)”: (1) legal base or authorization; (2) military benefits; (3) percentage principle.
In addition, according to Article 16 of “Constitution of the Republic of China (Taiwan)”, when national administration units deprive people of rights by administrative faults, upon “legal administration”, people’s rights shall be protected in or out of administrative system. However, in Taiwan, currently, we do not have complete system of soldiers’ right protection. Only Article 19 of “National Defense Act” suggests “legal relief when soldiers’ rights are illegally violated”; although soldiers are “public officials in broad sense”, they do not obtain the qualification by legal examination and selection and they are not protected by or the subjects of “Civil Service Protection Act”. Thus, the regulations of subjects and procedure protection of “Civil Service Protection Act” cannot be applied to soldiers (please find Interpretation No. 555 of Grand Justices, Judicial Yuan and Gong-Pao-Tzu No. 0919997681 of Civil Service Protection and Training Commission on January 3, 2003).
Since currently, Taiwan does not have complete system of soldiers’ right protection and soldiers are not protected by “Civil Service Protection Act”, national army constructs “appeal” and “Military Personnel Rights Committee” to protect soldiers’ legal rights; however, current laws of “appeal” and “Military Personnel Rights Committee” are “administrative rules” with internal power. “Military Personnel Rights Committee” is the general “unit of mission”. Thus, the legitimacy is insufficient.
This study adopts “literature review” and analyzes current practice of appeal and right protection system of national army by collecting and reorganizing related pacts, legal regulations, practical views, research reports, journal papers, dissertations, related books and websites. Upon the research findings, we propose the following suggestions:
1. Integration of national soldiers’ appeal and right protection system.
2. Legalization of national soldiers’ appeal and right protection system.
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