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大法官解釋表頭

(釋字第 400 號 )      友善列印PRINT  
Interpretation

J.Y.
Interpretation

NO.400 

Date

1996/4/12

Issue

Does the government ruling, which orders the owners of private preexisting roads to be burdened with public easement without receiving compensation, constitute an infringement upon said owners' property rights as protected by Article 15 of the Constitution?

Holding

  The purpose of Article 15 of the Constitution, which provides that the people's property right shall be protected, is to guarantee each individual the freedom to exercise his/her rights to use, profit and dispose for the duration of the property, and to prevent the infringements from public power and other parties to allow him/her to realize his/her freedoms, to develop his/her personality and to maintain his/her dignity. To be consistent with this constitutional protection of property right, state organizations, for the necessity for public use or other public interests, might expropriate people's property according to law, but should give a fair compensation in return. In the case where roads already exist on which public easement has been established due to some specific criteria, the owners of those roads have been deprived of their freedom to use and make profits from the lands. Their interests on the property have been specifically sacrificed for the general interest. To act fairly, the state should expropriate those lands according to law and provide compensation. If central or local governments, due to financial difficulties, can not completely expropriate those lands and make compensation, relevant organizations should set a deadline for compensation on annual installment or by other means. It is obviously contrary to the principle of equality that the state is not required to expropriate those lands and make compensation on which public easement has already been established and maintained by ordinances given that other privately owned lands within the same road plan have been expropriated and compensated for. Those parts of Ordinance T.67.N.No.6301 (Executive Yuan, 1978) and Ordinance T.69.N.No.2072 (Executive Yuan, 1980) which are inconsistent with the abovementioned reasons shall no longer apply.

Reasoning

  Firstly, it should be said that the final and binding judgment concerned in this petition has been made on the premise that Ordinance T.67.N.No.6301 (Executive Yuan, 1978) and Ordinance T.69.N.No.2072 (Executive Yuan, 1980) are not in conflict with Article 14 of the Land Act, although the petitioner has explicitly asserted those two ordinances might be in violation of the Constitution. According to Article 5, Paragraph 1, Subparagraph 2, of the Constitutional Interpretation Procedure Act, therefore, this petition should be granted.

  The purpose of Article 15 of the Constitution, which provides that the people's property right shall be protected, is to guarantee each individual the freedom to exercise his/her rights to use, profit and dispose for the duration of the property, and to prevent the infringements from public power and other parties upon his/her freedoms, so that he/she may develop his/her personality and maintain his/her dignity. However, individuals’ freedom to exercise their property rights should be restrained by their social or ecological responsibilities according to the law. Those individuals whose property rights have been restrained due to the abovementioned responsibilities and have been particularly sacrificed for public benefits shall have the right to be fairly compensated. To be consistent with the abovementioned constitutional protection of property rights, although the state, for setting up public enterprises or implementing national economic policies, according to law (See Articles 208 and 209 of the Land Act), might expropriate privately owned lands, it should compensate them fairly.

  The public easement, distinguished from the easement of the Civil Code, is a legal relationship in which those privately owned lands inherently should be for public use. This has long been established in our legal institutions (See J.Y. Interpretation No. 255; Judgment P.T. No. 8 [Ad. Ct., 1956] and Judgment P.T. No. 435 [Ad. Ct., 1972]). To determine if the owners of preexisting roads have been burdened by public easement, the following requirements should be met: first, it has to be a necessity, not just a convenience or a time-saving measure, for the unspecified public to use it as a crossing; second, owners did not stop the public from crossing when it began; third, this status has remained uninterrupted for a long time, although this does not mean it should have a definite period, it does mean that, except for some vague recollections (e.g., beginning in the Japanese Occupation Era or around the time of the flood of August 7), the exact beginning of this significantly lengthy period could not be remembered by ordinary persons. As regards those lands provided to be roads for public transportation under construction laws and the Civil Code, being different from preexisting roads which derive from prescription, logically, their owners should not be burdened by public easement as mentioned in this Interpretation. In the circumstances in which the owners of private lands are burdened by public easement due to the abovementioned criteria, the relevant organizations should, according to the law, expropriate the lands and, based on the government's financial resources, give fair compensation. If the central or local governments, due to financial difficulties, can not completely expropriate and compensate for those lands, they should consult Ordinance T.84. N.T. No. 38493 (Executive Yuan, 1995) and Ordinance T.84.N.I.T.No.8480481 (Ministry of the Interior, 1995) and set a feasible plan to appropriate financial resources to give compensation on annual installment or use other means, such as issuing bonds maturing at various dates, setting up user-pay systems, rendering it tax-deductible or giving publicly owned lands to substitute for monetary compensations. It is obviously against the principle of equality that the state is not required to expropriate and compensate for those lands on which public easement has already been established and maintained by ordinances given that other privately owned lands within the same road project have been expropriated and compensated for. Furthermore, once geographic or social environments have changed to such an extent that the necessity for preexisting roads no longer exists, the public easement should be immediately reviewed and repealed. Executive Yuan's Ordinance T.67.N.No.6301 (1978) stated that "after governments, according to urban planning, take actions to broaden or lengthen roads and change the type of roads, those privately owned lands within the scope of the road project, except for those preexisting roads from the Japanese Occupation Era which are still used and were registered in the 'road' category in the land registration book remaining burdened by public easement as mentioned before, shall be expropriated and compensated for." The Executive Yuan's Ordinance T.69.N.No.2072 (1980) further clarified that "The reason for the Executive Yuan's Ordinance T.67.N.No.6301 (1978) which said that preexisting roads from the Japanese Occupation Era could still be used based on public easement takes into account governments’ financial difficulties in providing a large sum of compensation, which definitely does not allow governments to take any action to expropriate those lands legally. Accordingly, considering that Article 14 of the Land Act provides that "public roads for transportation should not be privately owned...those privately owned lands might be expropriated according to law", the Ordinance should be modified as follows: "Local governments, once relieved of financial difficulties, subsidized by higher level governments for the specific road project, or having levied a benefit tax or user's fee, should compensate those owners of private lands of preexisting roads within the road project according to law." Those parts of these two Ordinances which are inconsistent with the abovementioned reasoning shall no longer apply.

Translated by Dr. Tze-Shiou Chien, Associate Research Fellow, Sun Yat-Sen Institute for Social Sciences and Philosophy, Academia Sinica.

Opinion

Chinese only

 

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