論國軍班隊簡章之法規屬性及其法制架構之檢討

A Research on the Legal Nature of the Military Academy Students Recruitment Regulations and a Review of Their Legal Framework

現行針對國軍各班隊簡章之法規屬性，僅有司法院大法官曾作過解釋認屬對外發布之一般性法規範，以及國防部訴願決定認屬行政契約之相關實務見解，其餘固然有零星學說見解及相關行政法院判決對非軍事院校之簡章屬性有所審認，惟渠等研討或審查對象之一般大專校院、警大或警專招生簡章乃至公務機關招聘約聘僱人員之甄選簡章，往往因與國軍各班隊簡章本質上有所差異，以致於可參考性不高。因此，本文在此參考背景資料有限之情況下，擬試圖先從現行兵役法、軍事教育條例等之法制架構出發，經由學說見解、司法院大法官所作解釋、相關行政法院判決、國防部訴願決定等實務見解之引證，並依班隊屬性分別對照大專校院入學招生、公務人員考選錄取訓練等方式，逐步尋繹出國軍班隊簡章之法規定性。其次，就現行國軍班隊簡章之法制是否符合法律保留、授權明確性等原則進行檢討，並提出研修兵役法、陸海空軍軍官士官服役條例及志願士兵服役條例等相關修法建議，以供國防部未來進行政策與法令研修之參考。

Currently, regarding the legal nature of the military academy students recruitment regulations, only the Grand Justices of the Judicial Yuan have interpreted that they are general regulations released to the public, and the Ministry of National Defense’s appeal decisions that are considered to be an administrative contract. Although there are some scattered theories and relevant administrative court decisions that have recognized the nature of the brochures of the general colleges and universities, the police colleges and universities, and even the selection of contract employees recruited by public agencies, but they are often fundamentally different from the briefings for each squad of the National Army, so they are not very useful as a reference. Therefore, with limited reference background information, first, this article intends to start from the legal framework of the current Act of Military Service System and Military Education, etc. and cite theories and practical insights such as Interpretation by the Grand Justices of the Judicial Yuan, relevant administrative court judgments, administrative appeal decisions, etc., and according to the attributes of the military academy classes, we compared the admissions of colleges and universities, the selection and training of civil servants, etc., and gradually found the legal nature of the above students recruitment regulations. Secondly, whether the current legal system of the National Army military academy students recruitment regulations comply with the principles of legal reservation and authorization clarity will be reviewed and relevant suggestions for amending the law will be put forward to provide reference for the Ministry of National Defense in future policy and legal amendments.