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(釋字第 731 號 )      友善列印PRINT  
Interpretation
J.Y.
Interpretation
NO.731  [ Case concerning the starting date of application for compensation in land, rather than cash, in cases of zone expropriation ]
Date 2015/7/31
Issue If the portion of the Contested Requirement, which stipulates that those who wish to apply for compensation in land in lieu of cash “shall within the period of the public announcement of the expropriation” submit their application, is unconstitutional, because the date of the public announcement of the expropriation is used to calculate the period during which individuals who are served a written notice of expropriation issued after that date may apply?
Holding Article 40, Paragraph 1 of the Land Expropriation Act (enacted and published on February 2, 2000) stipulates that: “When carrying out zone expropriation, an original landowner who does not wish to receive cash as compensation, shall, within the period of the public announcement of the expropriation and enclosing relevant supporting documents, apply to the competent authority of the governing municipality or county (city) in writing for compensation in land rather than cash….” (This particular Article was amended and promulgated on January 4, 2012. However, this requirement was not corrected; it is hereinafter referred to as the “Contested Requirement”.) With regard to the requirement that applications shall be submitted within the period of a public announcement, during which the aforementioned competent authority, pursuant to Article 18 of the same Act, gives written notice to the landowner(s) and the landowner(s) is served with a written notice after the date of the public announcement of the expropriation, the Contested Requirement fails to state that the day after the written notice is served should be used as the starting date of the application period. Rather the date of the public announcement of the expropriation continues to be used to calculate the period for application. This requirement demands that the original landowner(s) submit their applications within the period of the public announcement of the expropriation, which is inconsistent with due process in administrative procedure as required by the Constitution, and contravenes the legislative intent of Article 15 of the Constitutionwhich guarantees the people’s right to property. Accordingly, it shall be reviewed and corrected within one year from the date of publication of this interpretation. If it is not so corrected by the deadline, this portion shall become null and void.
Reasoning The people’s right to property is guaranteed by Article 15 of the Constitution. Although the State may, according to law, expropriate the people’s property for public use or other objects of public interest, it should forthwith provide reasonable, and comparable compensation, so that it complies with the legislative intent of the constitutional guarantee of the right to property (see J.Y. Interpretations Nos. 400, 516, 579, and 652). Under zone expropriation carried out according to the Land Expropriation Act (hereinafter referred to as the Contested Act), the original landowner(s) may apply for land in compensation that is suitable for construction post-expropriation. The value of the land granted in compensation shall be deducted from the cash compensation which the landowner would otherwise have been entitled to (see Article 39, Paragraph 1 of the Contested Act). This deduction in terms ofland is a method of compensation for the act of expropriation. The period of application for compensation in land rather than cash involves a limitation on the people’s right to property, and therefore due process in administrative procedures shall apply, including efforts to ensure that all interested persons receive the relevant information in a timely manner, thereby allowing them to assert, or otherwise protect, their rights against the competent authorities in appropriate circumstances (see J.Y. Interpretations Nos. 663, 689, and 709).
Article 18 of the Contested Act stipulates that: “Upon receiving notice of approval for an application for expropriation from the Central Competent Authority, the competent authority of the governing municipality or county (city) shall forthwith make a public announcement, and notify the owner(s) of land or land improvements and the holders of other rights by written notice. (Paragraph 1) The period of the public announcement referred to in the preceding paragraph shall be thirty (30) days. (Paragraph 2)” With regard to the expropriation, the competent authority of the governing municipality or county (city) shall provide a public announcement and written notice, in order to ensure the owners of land or land improvements and holders of other rights are aware of any relevant information, thereby allowing them to exercise their rights where appropriate, and to seek administrative remedies when necessary. Further, in cases of zone expropriation, pursuant to Article 39, Paragraph 1 of the Contested Act, there are two legal methods of compensation for the original landowner(s) to choose from: cash compensation or compensation in land rather than cash. If the original landowner(s) does not wish to receive compensation in cash, according to the Contested Requirement, they shall apply to the competent authority of the governing municipal or county (city)for compensation in land rather than cashwithin the period of the public announcement of the expropriation. However, in the event that the content of the public announcement of expropriation is provided to the original landowner(s) by written notice and the landowner(s) are served after the starting date of the public announcement, if the day of reception of the written notice is not used as the starting date for the period of application, but rather the starting date of the public announcement of the expropriation continues to be used to calculate the aforementioned 30-day period, then this requires the original landowner(s) to submit their applications within the period set by the public announcement of the expropriation, which will not ensure the original landowner(s) can receive the timely information needed to choose a method of compensation, nor will it allow them to enjoy the aforementioned 30-day period of time. This is inconsistent with due process in administrative procedure required by the Constitution, and contravenes the legislative intent of Article 15 of the Constitution which guarantees the people’s right to property. It thus shall be reviewed and corrected within one year from the date of publication of this interpretation. If it is not corrected by the deadline, this portion shall become null and void.
In order to ensure the original landowner(s) receive sufficient information to decide whether to apply for compensation in terms of land rather than cash, it is advisable that the competent authority should, at the time of making a public announcement of the expropriation and providing written notice thereof, also provide an estimated compensatory land unit value. Further should the original landowner(s) disagree with the amount of compensation offered (see Article 22 of the Contested Act), the authority should consider whether the application period for compensation in land in lieu of cash should be extended. These matters relate to the guaranteed rights and interests of the owners of land under zone expropriation. The competent authority shall review these related requirements together.
Editor's Note Summary of Facts:
The Chiayi City Government in dealing with the zone expropriation development project in the Huzi-nei area of the city, required use of land within the Huzi-nei area. The expropriation was announced after approval by the Ministry of the Interior, with the period of the public announcement starting on August 3, 2009 and ending on September 2. Fu-Di-Hua-Zi Letter No. 0981603588 was sent out on July 29, 2009 to give notice to the petitioners, and the petitioners were served with a written notice on August 5, 2009. The petitioners submitted their applications for compensation in land rather than cash to the Chiayi City Government on September 4 of the same year, to which the Chiayi City Government responded by letter that the petitioners’ applications were submitted after the elapse of the period of the public announcement, and thus Chiayi City could not permit land to be offered as compensation in lieu of cash. The petitioners disagreed, and initiated administrative litigation accordingly. After exhausting all levels of appeal, they felt the Contested Requirement deemed appropriate by the confirmed final judgment might contravene the Constitution, and thereby petitioned for this interpretation.

Opinion
(Files)
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