2018年軍公教退休年金改革之探討

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Title:	2018年軍公教退休年金改革之探討 Study on the reform of retirement pension in soldier,civil servant and teacher in 2018
Authors:	張順成
Contributors:	法律學系碩士在職專班
Keywords:	年金年金改革行政救濟比例原則信賴保護原則法律不溯及既往原則 annuity annuity reform administrative relief principle of proportionality principle of legitimate expectancy principle of non-retroactivity of laws
Date:	2019
Issue Date:	2019-06-13 12:43:04 (UTC+8)
Abstract:	政府為減輕國家財政負擔及人口老化帶來年金負債危機，成立「總統府國家年金改革員會」，以「少領、多繳及延退」為改革方向，並經立法院三讀通過「公務人員退休資遣撫卹法」、「公立學校教職員退休資遣撫卹條例」及「陸海空軍軍官士官服役條例」等修正法案，自2018年7月1日實施軍公教人員退撫新制，惟此次年改實有如下問題：首先，成立「總統府國家年金改革委員會」似已違反權力分立，其功能應以「國家發展委員會」取代才合理；又軍公教年金雖受憲法上制度性保障，就德國憲法法院實務認為公法上財產權的保障基準為「具有私使用性」、「透過相當之自已給付」及「負有生存保障作用」三項。惟「恩給制」未給付保險金之軍公教人員而言，因未曾有個人給付之條件，對財產權應無請求權，惟仍應受憲法上服公職之保障。其次，不滿重新處分書之人員，紛紛以違反「比例原則」、「信賴保護原則」及「法律不溯及既往原則」為訴求，向各退撫卹主管機關提出「訴願（復審）」及「行政訴訟」救濟程序，勢必造成訴願（復審）機關及行政法院訴訟之負荷。筆者認為應於訴願法及公務人員保障法中，增加共同訴願（復審）制度，並可考慮是否於共同訴願（復審）後，若仍未獲救濟，得直接聲請大法官釋憲。其三，本次年改以減少退休人員之退休所得，有無符合比例原則？應視其手段對人民自由權利限制之輕重，與其欲達成目的之公共利益大小是否相當，來加以判斷。其四，依司法院大法官釋字第525號，因公益之必要廢止法規或修改內容致人民客觀上具體表現其因信賴而生之實體法上利益受損害，應採取合理之補救措施，或訂定過渡期間之條款，俾減輕損害；故政府基於軍公教退撫基金免於破產危機而修法，雖符合公益目的，惟本次公教人員所得替代率之調降比率過大，似有違信賴保護原則之虞。最後，軍公教人員依法退休後，其即發生對國家得請求給與退休金之法律關係，縱使新退撫法施行後，並未消減或終止此已存在之法律關係，渠等人員仍得對國家請求給與退休金，應無違反「法律不溯及既往原則」。 To reduce annuity debt crisis derived from national finance burden and aging population, government has established “The Office of President’s National Pension Reform Committee” oriented to the reformation of “less payment, more contribution and deferred retirement”. There are also “Act Governing Civil Servants' Retirement, Discharge and Condolence”, “Act Governing Retirement, Severance, and Bereavement Compensation for the Teaching and Other Staff Members of Public Schools” and “Act of Military Service for Officers and Non-commissioned Officers of the Armed Forces” such acts passed by Legislative Yuan through three reading procedures. The new system of government employee pension and condolence has been implemented since July 1, 2018. However, this pension reform actually has issues as follows: First, the organization of “the Office of President’s National Pension Reform Committee” seems already violating separation of powers” and its functions should be replaced by “National Development Council”. Meanwhile, though the annuity of government employees is systematically protected by the Constitution, the Constitutional court of German considers the protection of property rights under public laws shall be based on “available for private use”, “via equivalent self-payment” and “with survival protection” in practice. To government employees without “defined benefit pension”, they are not entitled to personal payment and therefore without right to claim property right. However, they still have protection in term of serving public under the Constitution. Second, those who object the new disposition successively file “complaint (review)” and “administrative litigation” relief procedures to various competent pension authority” based on the claim of violating “principle of proportionality”, “principle of legitimate expectation” and “principle of non-retroactivity of laws”, which would naturally cause the burden of complaint (review) agencies and administrative litigation. The author considers adding joint complaint (review) system in Administrative Appeal Act and Civil Service Protection Act and also considers if it is possible to appeal for constitutional interpretation by grand judge when the relief is failed after joint complaint (review). Third, this annuity reform would reduce the retirement income of retired personnel, and if it is satisfactory to the principle of proportionality? It should depend on the degree of restrictions arising from the measures to freedoms of people and if it is equivalent to expected public benefit. Fourth, according to interpretation No. 525 of grand judge, Ministry of Justice, when public suffers damage in term of benefits under physical laws due to abolished laws or revised content as necessary for public benefit, the reasonable remedy measures shall be adopted or transitional provisions shall be established to reduce the damage. Therefore, although the revision of laws to avoid bankruptcy crisis of government employee pension fund is satisfactory to public benefit, however, the income replacement ratio is reduced too much this time and seems to concern of violating principle of legitimate expectation. Finally, after the government employees retire, the legal relationship in term of claim to the country and pension fund is generated immediately. Even the implementation of new Pension Act, the existed legal relationship is still not decreased or terminated. Such employees may still claim to the country for pension fund without violating “principle of non-retroactivity of laws”.
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