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  • Interpretation
  • No.273
  • Date
  • 1991/02/01
  • Issue
    • Is the regulation denying all objections against the result of a resurvey under the Regulations Governing the Surveying in Respect of Urban Plan unconstitutional?
  • Holding
    •        The latter part of Article 8 of the Regulations Governing the Surveying in Respect of Urban Plan as amended and promulgated by the Ministry of the Interior on May 4, 1979, providing that: “no objections may be made against the result of the resurvey determined by the competent authority,” has imposed restrictions on the people*s right to seek administrative remedies under the Administrative Appeal Act and the Administrative Proceedings Act.  The said provision, in that respect, is in conflict with Article 16 of the Constitution and thus shall no longer apply.
      
  • Reasoning
    •        According to Article 16 of the Constitution, the people have the rights of lodging complaints and of instituting legal proceedings, which means that the people shall have a right to file administrative appeal or to sue when their rights are infringed upon, whereas the authority or court with which the appeal or lawsuit is filed shall be obligated to make a decision or render a judgment, as the case may be, in accordance with the law.  The aforesaid right cannot be restricted by means of any administrative regulation.
      
    •        According to Article 23 of the Urban Planning Act, the erection of stakes, the calculation of coordinates, and the survey of division of registration of land shall be made within one year upon the announcement and execution of the detailed plan of the urban plan.  Based on the said Article, the Ministry of the Interior amended and promulgated the Regulations Governing the Surveying in Respect of Urban Plan on May 4, 1979.  In accordance with Articles 6 and 8 thereof, where an interested party to the land believes that there is any mistake in the location of the survey stake, the party may apply for resurvey and re-resurvey; nonetheless, the latter part of Article 8 provides that “no objections may be made against the result of the resurvey determined by the supervising authority.”  The Administrative Court, in its 77-Tsai-86 ruling, states that a literal reading of the provision “no objections may be made” includes the meaning that neither administrative appeal nor administrative litigation may be filed.  Thus, in that respect, it has imposed restrictions on the people*s right to seek administrative remedies under the Administrative Appeal Act and the Administrative Proceedings Act.
      
    •        Although there are such remedies as resurvey and re-resurvey under the abovementioned Regulations for the infringement of the interests of an interested party to the land resulting from the mistake in the location of the survey stake, the restrictions on the people*s rights of filing administrative appeal and administrative litigation are apparently in conflict with the abovementioned constitutional intent to protect the people*s rights and hence shall no longer apply.
      
    • *Translated by Vincent C. Kuan.
      
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