李玉君；蔡文琳

中文摘要

過去我國在傳統特別權力關係理論之束縛下，國家對公務人員權益之保障顯然較為欠缺。然特別權力關係理論自司法院大法官釋字第一八七號解釋以還已漸式微，公務人員權益保障日漸獲得重視，公務人員與國家之關係，目前已轉變為公法上職務關係，即是一種權利義務之對等關係。是以，依傳統特別權力關係理論而建立之專案考績免職制度是否仍有存在之必要，自應重新加以思考與檢討。本文首先從我國特別權力係理論的演變出發，繼而闡明專案考績免職制度之意涵及其缺失，最後則以權力分立、身分保障理論、法治國原則、行政中立的角度以及實務運作等五個面向檢視專案考績免職制度之合憲性與妥適性，並據以論述該制度應予廢除之理由。

Analysis of Taiwans Examination Mittimus of Civil Service

Lee, Yu-Jun；Tsay, Wen-Lin

abstract

In the past, under the restraint of Special Authority Relations, it seemed inadequate for the government to guarantee the benefits and rights of its employees. However, Special Authority Relations has begun to decay since the Interpretation Shih-Tzu-No. 187 by the Grand Justices was published. With the increasing consciousness of public employees for rights and benefits, the relationship between the Government and its employees has become one in which rights are commensurate with obligations. Hence, it should take up reconsiderations and review if the system of terminating or laying off of a public employee based on performance appraisal still necessary to be there. The study started from the changes of the theory of relationship between the government and its employees, identified, analyzed the meaning and shortcomings of the system of terminating or laying off of a public employee based on performance appraisal, and finally, examined from five different points of view - the constitutional system, theory of status protection, rule by law, neutrality of civil service and the application to practice - to review if the termination or laying off of a public employee based on performance appraisal is appropriate and in compliance with the Constitution, and based on the findings, listed reasons why the system should be abolished.