考績懲處行使之探討   全文下載

Research on Punishment Acting of the Performance Evaluation Act

公務人員與國家之間的關係，目前係架構在「公法上的職務關係」之下，從而其建立之基準係在於「法」的關係，而非「力」的關係。惟公務人員考績法（以下簡稱考績法）於民國七十五年制定之時，當時的公務人員與國家的關係係處於「特別權力關係」架構之下，從而造成考績法所規制之事項，係以「特別權力關係」為其立法思維基礎，考績法雖經多次修正，惟特別權力關係之烙痕並未消失，尤以懲處為甚，是以，有關考績法中對於懲處之規範有深入檢討之必要。
本文為探討考績懲處之相關規範，爰擬從考績懲處之事物本質、懲處法定原則及其責任條件與阻卻事由、懲處之時效、懲處與刑罰、懲戒之競合、懲處正當程序之踐行等面向分別予以檢討分析，冀望對公務人員之懲處，能合乎懲處之本質，使罰與責相當，使官箴得以重新型塑。

The civil servants and government authority are related by the structure of law with public service position. In other word, the relationship of civil servants and government authority is based on regulations rather than power. Although, the Civil Service Performance Evaluation Act (shorten to the Performance Evaluation Act) has amended several times since it was legislated by an original thinking of special power relationship between civil servants and government authority in 1986, that the special power relationship haven’t be eliminated from enactment states especially about punishment. Thus, it is necessary to study punishment of the Performance Evaluation Act in depth.
It would be written remarks giving some criticizing on punitive action of the performance evaluation regulations as follows: the essential meaning of objects, principle of legality, capacity of condition, punish defense clause, limitation of time, punishment and criminal sentence or correction are existing concurrent, due process of punishment acting. The punishments inflicted on civil servants should be appropriate for the crime and capacity as well as according with its essence of regulation is expected. Then, the government authority can improve its new public image.