黨職併公職：立法回顧與追討爭議

A Brief Review of the Legislative History and the Recent Cases of the Act on the Settlement of the Combination of Years of Service in Public Sector and Political Organizations

羅承宗(Cheng-Chung Lo) ； 張雁翔(Yen-Hsiang Chang)

《黨產研究》 7期 (2021/12) Pp. 5-31

摘要

關於中國國民黨於黨國威權統治時期，退休官員以黨職併公職年資採計並領取優惠存款，亦即俗稱「黨職併公職」問題。2017年5月10日公職人員年資併社團專職人員年資計發退離給與處理條例公布施行，相關行政機關依據此條例陸續展開溢領退休金的追討作業。同時，不服行政決定之相對人展開行政救濟，從而衍生不少行政法院判決。然而，本條例之實際運作卻與立法目的有所衝突，進而造成主管機關在追討退離給與時的訴訟上爭議。本文嘗試從宏觀角度對立法脈絡、相關機關行政作為與行政法院見解進行剖析，並提出本文看法。

關鍵字

黨職併公職 ； 退離給與 ； 消滅時效 ； 訓示規定 ； 公法上不當得利請求權

並列摘要

The Act on the Settlement of the Combination of Years of Service in Public Sector and Political Organizations has been enacted and implemented on May 10th, 2017. This Act addresses the so-called ＂Combination of Years of Service in Public Sector and Political Organizations＂ issue, which was caused by the preferential retirement treatments for the retired public servants who served as the KMT officials at the same time during the authoritarian period under martial law. Based on the Act, the relevant administrative agencies have processed to recover the excess amount of pensions falsely acquired by the said retired public servants; meanwhile, several of the requested parties filed the suits against the reclamations. Therefore, the Administrative Court have made numerous judicial decisions about the Act in recent years. However, by reviewing the said judicial decisions, this article finds that the implementation of the Act is contradictory to its legislative purpose. This contradiction even caused the plight for the competent authority to reclaim the excessive pension payouts by litigation. This article will propose some suggestions to ease the contradiction by examining and analyzing the legislative history of the Act on the Settlement of the Combination of Years of Service in Public Sector and Political Organizations, the administrative conduct based on the Act, and the relevant judicial decisions.

並列關鍵字

Combination of Years of Service in Public Sector and Political Organizations ； Separation Payment ； Extinctive Prescription ； Instructive Regulations ； the Claim for Unjust Enrichment in Public Law