論忠勤勳章之法律性質

A Research on the Legal Nature of the Order of Loyalty and Diligence

獎章條例第5條之服務獎章及警察獎章條例第2條第11款之警察獎章之頒發係為慰勉公教人員任公職之辛勞。武職公務員之任務為保家衛國，其人身自由之受拘束性與生命健康之受威脅性，非文職公務員可比，國家對武職公務員勤務與忠誠要求更高，而國家的回饋與照顧，也應相對地更加周全與優渥。故軍人連續服役10年以上，其服務成績，足資矜式者，則依陸海空軍勳賞條例第8條頒給之忠勤勳章。立法者並授權行政院會同考試院、內政部及國防部以法規命令訂定施行細則，藉以授權上開機關依實際需求定義服務成績足資矜式或優良，包括積極及消極要件。惟國防部除於陸海空軍勳賞條例施行細則訂定積極要件外，另訂定行政規則之國軍勳賞獎懲作業實施要點，規範上揭法律及法規命令所無規定之消極要件。本文將介紹公務員勳獎制度在行政法上的演進，並比較公務人員法制之立法例，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。

The Service Medal of the Article 5 of the Medal Award Act and the Police Medal in accordance with subparagraph 11 of the Article 2 of the Police Medal Act, are awarded to public servants who have an excellent service. Comparing with civil servants, soldiers on active service have combat duties during wartime, and their duty of obedience cannot be equated to that of civil servants. The nation asks for their higher loyalty and diligence, and gives more care to them. Therefore soldiers who have continuously served for more than 10 years and their records are worthy to be decorated, will be decorated the Order of Loyalty and Diligence in accordance with the Article 8 of the Arm Forces Decoration Act. The lawmakers authorized the Executive Yuan together with the Examination Yuan, the Ministry of the Interior, and the Ministry of National Defense to establish legal orders, which indeed defined“records are worthy to be decorated”,“an excellent service”, or“excellent achievements”, including positive conditions and negative conditions. The Ministry of National Defense established the Enforcement Rules of Arm Forces Decoration Act, which defined positive conditions. However, the Ministry of National Defense established the Enforcement Guidelines for Orders, Medals and Punishments of Armed Forces, which contains the Enforcement Rules of Arm Forces Decoration Act does not contain. This research introduces the evolution of the commending system of civil servants and soldiers as an administrative law, compares with the legal system of civil servants, and surveys whether the Ministry of National Defense 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.