軍人兼職兼差限制規定之適法性研析

軍人在公法上之關係，已從傳統的特別權力關係轉換成特別法律關係，同其身分與一般公民無異，更是廣義的公務員；然政府前推動年金改革時，不少公務員對於未來退休規劃感到惶恐，適值銓敘部於2017年研擬公務員服務法，並規劃「公務員兼職兼業許可辦法」配套，倘經報請機關許可，公務員在非上班時間即可兼差；相較於同為公務員之軍人，卻仍受陸海空軍軍官士官任職條例、陸海空軍懲罰法、國軍人員不得在外兼職兼差規定等法令之條件限制，本文就公務員擬放寬兼職兼差之法律設計，再檢視限制軍人兼職兼差之適法性，進行有關法令上之思辨及探討。

關鍵字

軍人；公務員；兼職；兼差；兼業

並列摘要

The relationship between military personnel in public law has been transformed from the traditional special power relationship into a special legal relationship. The status of a soldier is no different from that of an ordinary citizen, and he is also a civil servant in a broad sense. However, when the government pushed forward pension reforms, many civil servants were apprehensive about their future retirement plans. At this time, it happened that the Ministry of Civil Service reviewed the Civil Service Law in 2017 and planned the cooperation law of the ＂License Measures for Part-time and Part-time Work for Civil Servants＂. Civil servants may work part-time jobs during non-working hours if approved by the reporting agency. Compared with military personnel with civil servant status, this part needs to be subject to the conditions of Act of Assignment for Officers and Noncommissioned Officers of the Armed Forces, Armed Forces Punishment Act, and the rule that military personnel are not allowed to work outside. This article speculates and discusses the legal design of civil servants preparing to relax the legal design of part-time and part-time employment, and then examines the legality of restricting part-time and part-time employment for military personnel.