Point 1.2(2) of the “2010 Examination and Admission Guidelines for the Volunteer Reserve Military Officer and Reserve Noncommissioned Officer Examination” regulating that “Those who have a record of conviction … cannot register for the examination” complies with the principle of legal reservation provided by Article 23 of the Constitution. However, if restrictions on examination qualifications are applied beyond the extent necessary, it violates the principle of proportionality, as set out in Article 23 of the Constitution, and people’s right to hold public office under Article 18 of the Constitution. Recruitment and admission guidelines for similar examinations held by relevant government agencies in the future should thus follow the intent provided in this Interpretation.

       According to Article 5, Paragraph 1, Subparagraph 2 of the Constitutional Interpretation Procedure Act, if rights guaranteed to the people by the Constitution have been violated and legal proceedings initiated, and there are doubts whether the laws or ordinances applied in the final judgment conflict with the constitution, constitutional interpretation may be sought. National Planning Ordinance No. 098003746 of December 14, 2009 issued by the Department of National Defense authorizes the “2010 Examination and Admission Guidelines for the Volunteer Reserve Military Officer and Reserve Noncommissioned Officer Examination” (hereinafter referred to as the “Disputed　Guidelines”), which set forth matters related to the 2010 class recruitment examination for volunteer reserve military officers and reserve noncommissioned officers (hereinafter referred to as the “Disputed Examination”). It is a general regulation announced to the public and thus shall be considered an ordinance as referred to above. Therefore the court may review these Disputed Guidelines to confirm its conformity with constitutional law.

       Article 18 of the Constitution protects people’s right to hold public office and the right to engage in public service works. Volunteer reserve military officers and volunteer reserve noncommissioned officers are cadres at the basic level in the military and shall be considered public service officers under Article 18 of the Constitution, since they are selected and trained pursuant to statutory procedures and perform duties such as training, military operations, logistical service, and disaster prevention assistance in accordance with the National Defense Act and other relevant regulations. Therefore, a person’s right to choose to become either a reserve military officer or a reserve noncommissioned officer pursuant to the methods and procedures stipulated by law should be protected. Article 16, Paragraph 1 of the Enforcement Regulations regarding Selection and Training of Reserve Ranking Officers and Reserve Noncommissioned Officers for Military Services (hereinafter referred to as “Selection and Training Enforcement Regulations”) as amended and announced on April 27, 2009 provides that reserve military officers or reserve noncommissioned officers who pass the basic education will, unless otherwise stipulated, be promoted to either Second Lieutenant or Corporal with their active duty commencing on the date of appointment. Any university or college graduate wishing to enter military service as reserve military or reserve noncommissioned officer shall be admitted by the Disputed Examination and be required to complete the basic education. Point 1.2(2) of the Disputed Guidelines states: “Those who have a record of conviction … cannot take the examination” (hereinafter referred to as “Disputed Provision”). Although the Disputed Provision does not directly prohibit those with a record of conviction from becoming a reserve military officer or reserve noncommissioned officer, participation in the Volunteer Reserve Military Officer and Reserve Noncommissioned Officer Examination is a necessary requirement for university or college graduates to serve in the aforementioned military rank. Furthermore, those admitted by said Examination and having passed the basic education are promoted to either Second Lieutenant or Corporal without any further examination procedures. Hence the Disputed Provision is a negative qualification that does not allow those with a record of conviction to take the Disputed Examination. As a result, those with a record of conviction do not have the choice to become either volunteer reserve military or reserve noncommissioned officers, thus restricting people’s right to serve in public office.

       Article 11, Paragraph 1 of the Conscription Act provides: “The Enforcement Regulations regarding Selection and Training of Reserve Ranking Officers and Reserve Noncommissioned Officers for Military Services stated in the above two articles are issued by the Ministry of National Defense together with the related agencies.” Article 5 of the Act of Military Education states: “The basic education has the objective to cultivate the military officers and noncommissioned officers and is being handled by the military academy, the classification and objectives of the basic education are as follows: … 4. Military habitual education: targeting those with college degrees, vocational degrees or high school degrees, to pursue a military habitual education as its objective; can set up a Standing Ranking Officers class, Standing Junior Officers Class, Reserve Ranking Officers class, Reserve Junior Officers Class or its equivalent classes can be established (Paragraph 1) … The regulations of … enrollment qualification … as stated in Paragraph 1, Subparagraph 4 are determined by the Ministry of National Defense (Paragraph 3).” Article 3 of the Selection and Training Enforcement stipulates: “The target applicants, methods, quota, subject matter, eligibility, method of registration and other related matters for the annual selection of reserve military officers or noncommissioned officers shall be implemented by the Selection Plan of the Ministry of National Defense, or the Land Command Headquarters of the Ministry of National Defense, Navy Command Headquarters of the Ministry of National Defense, Air Force Command Headquarters of the Ministry of National Defense, the Combined Logistics Command of the Ministry of National Defense, the Reserve Command of the Ministry of National Defense, or the Military Police Command of the Ministry of National Defense shall be appointed to devise the Selection Plan and report such Plan to the Ministry of National Defense and implemented upon approval.” Article 5, Paragraph 1 of the same Enforcement Regulations also mandates: “For the selection of reserve military officers or reserve noncommissioned officer, the Ministry of National Defense, the Ministry of Interior, the Ministry of Education and other relevant agencies shall set up a selection committee pursuant to the Selection Plan to formulate and administer the general guidelines governing the examination. However, for volunteer reserve military officers, volunteer reserve noncommissioned officers or mandatory reserve noncommissioned officers, the appointed agency may form a selection committee to issue the examination guidelines in accordance with the Selection Plan approved by the Ministry of National Defense.” Hence, due to the special and professional nature of defense affairs, the legislators have authorized the Ministry of National Defense to prescribe regulations regarding matters such as the selection and training for military services and admission qualifications. The Selection and Training Enforcement Regulations prescribed by the Ministry of National Defense in accordance with legal authorization expressly stipulates that for the selection of volunteer reserve military officers and reserve noncommissioned officers, an agency may be appointed to formulate the plan and implement such plan upon approval, pursuant to which a selection committee will be formed to formulate the guidelines for the selection and administration of examinations. As such, important matters related to the selection such as target applicants, methods, quota, subject matter, eligibility, and method of registration are prescribed unilaterally by the Ministry of National Defense or formulated in accordance with the approved Selection Plan to serve as basis for implementation. Although the Disputed Guidelines are formally issued by the Selection Committee pursuant to the Selection Plan, the Ministry of National Defense still has the authority to decide the content of the Disputed Examination. With reference to Article 8-3, Subparagraph 3 of the Military Academy Attendance Rules prescribed in accordance with Article 5, Paragraph 3 of the Act of Military Education and other relevant provisions, which states: “Student enrollment should meet the following qualifications … 3. Applicants should not have a record of conviction, but those falling under Article 83-1, Paragraph 1 of the Juvenile Proceeding Act are not restricted.” Although this does not directly concern eligibility to participate in examinations, admission eligibility and examination eligibility are very closely related and restrictions of class enrollment rules are similar to the Disputed Provision. This is sufficient to show that the Disputed Regulation does not go beyond the direct or indirect scope of authorization granted under Article 11, Paragraph 1 of the Conscription Act, and Article 5, Paragraph 3 of the Act of Military Education and is consistent with the principle of legal reservation provided by Article 23 of the Constitution.

       When state organizations hold examinations to select public employees, in order to differentiate and select the appropriate persons, restrictions on applicant qualifications are not prohibited. This is within the competent authority’s discretion and should be respected. Nevertheless, such restrictions should still comply with the principle of proportionality provided by Article 23 of the Constitution.

       Volunteer reserve military officers and reserve noncommissioned officers can legally possess arms, equipment, and use military force when necessary. Military students are the future national army members or cadres, their personal integrity and ability will have significant impact on the strength of the military. To ensure the quality of military students and cadres as well as the supervision of the military command, the Disputed Provision stipulates that a record of conviction restricts an applicant’s qualification to take an exam, so as to prevent lack of integrity or ability among the candidates that may endanger national or military security. This constitutes an important public interest, a legitimate aim, and the method will help achieve the stated purpose.

       If a record of conviction arises from intentional criminal offense, it shows a clear lack of integrity. If the criminal offense is committed due to negligence, it means that there is lack of attentiveness. Permitting these people to become cadres at the basic level in the military may be detrimental to the standard of the troop’s quality as a whole and the improvement of the overall capability of the troops and hence might jeopardize national security. Therefore, the restrictions placed by the Disputed Provision are necessary. However, if an offender committed the crime due to negligence with no malignance of an intentional offense and such act is only an occasional occurrence with slight consequences of minor offense, then it is difficult to say that the offender necessarily lacks integrity and capability and has an impact on military strength. The Disputed Provision deprives such persons the opportunity to hold military posts via the Disputed Examination and does not constitute the mildest way to achieve the stated purpose. It exceeds the necessary extent in contravention of the principle of proportionality under Article 23 of the Constitution and violates people’s right to hold public office granted by Article 18 of the Constitution. Relevant agencies should subsequently formulate their recruitment and admission guidelines in accordance with this Interpretation.