論軍職人員績等管制與法律保留原則

A Research on the Limitations of Grades of Evaluation of the Armed Forces and the Principle of Legal Reservation

為落實「綜覈名實、信賞必罰」之旨，準確客觀考核公務員，立法者將我國軍人之考績制度，規定於陸海空軍軍官士官考績條例，且因考績績等事涉考績獎金及陞遷等事項，足以影響公務員晉敘陞遷等憲法所保障之服公職權，立法者遂授權國防部以法規命令訂定績等標準，國防部據以訂定陸海空軍軍官士官考績績等及獎金標準，志願士兵亦準用之。惟國防部另訂定國軍志願役軍官士官及志願士兵考績作業規定，規範上揭法律及法規命令所無規定之績等管制事項。本文將介紹軍人考績制度在行政法上的演進，並比較公務人員考績法之立法例及績等管制事項，檢視國防部上開作法是否違反法律保留原則等一般性法律原則，而侵害軍職人員之服公職權，並具體提出修正建議，維護軍人權益，確實依法行政，以建構法治國。

In order to evaluate civil servants accurately and objectively, the law makers promulgated the Act of Merit for Officers and Noncommissioned Officers of the Armed Forces, which rules the evaluating system of soldiers. Appraisal bonus and promotion, which the Constitution guarantees the people' s right to hold public offices, that encompasses the right of a public functionary to be appointed, promoted and transferred pursuant to law after taking his or her office, are determined by the Grades of Evaluation. The lawmakers authorized the Ministry of National Defense to establish legal orders, which determine the annual evaluation, the separate evaluation and the standard of award. The Ministry of National Defense established the Standards of Merit and Bonus for Officers and Noncommissioned Officers of the Armed Forces, for which the Volunteer Enlisted Soldiers shall apply mutat is mutandis. However, the Ministry of National Defense established the Directions Governing the Evaluation of the Volunteer Officers, Noncommissioned Officers and Enlisted Soldiers in addition, which contains the Limitations of Grades of Evaluation that the Act and the Standards do not contain. This research introduces the evolution of the evaluating system of soldiers as an administrative law, compares with the Civil Service Performance Evaluation Act, and surveys whether the Ministry of National Defense did above infringes soldiers' right to hold public offices by the Principle of Legal Reservation and other general principles of law, in order to protect the rights of soldiers by the Principle of Administration by Law and our constitutional state.