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  • Interpretation
  • No.291
  • Date
  • 1992/02/28
  • Issue
    • Is Guidelines for Review on the Registration of Superficies Acquired by Prescription constitutional in requiring that an applicant for recordation of superficies for a building constructed on land of another person must file documents to prove that the building is a "legitimate one"?
  • Holding
    •        The acquisitive prescription system is intended for the public interest, and a property right acquired under this system is protected by the Constitution. The Guidelines for Review on the Registration of Superficies Acquired by Prescription issued by the Ministry of Interior per letter dated August 17, 1988, set forth in Section 5, Subsection 1, that "a person making use of land for the purpose of [owning] a building thereon shall produce the certificates required by Article 70 of the Land Recording Regulations to show that the building is a legitimate building," making it impossible for a person who, having taken longtime possession of the private land owned by another person, would otherwise be legally entitled to acquire superficies over the land by prescription, to have the recordation of his superficies perfected because of his inability to produce the required certificates in respect of such legitimate building. Such rule is contrary to the purpose of the Constitution in protecting the people*s property rights and must be rendered inoperative. Incidentally, where a dispute arises over the rent or other matters in connection with the lease of the land between the owner and the person who is recorded as an owner of superficies over such land upon fulfillment of the acquisitive prescription, the case must be submitted to a decision of the court.
  • Reasoning
    •        Articles 768 through Article 772 inclusive of the Civil Code with respect to the acquisition of ownership or other property rights by reason of prescription are intended to promote the public interest by encouraging the owner of the original right to better fulfill his social responsibility of positive utilization of his property and recognizing the value of the order established by longtime possession. This property right, being acquired by operation of law, must be protected by the Constitution. The right of claim to have a superficies acquired upon fulfillment of prescription over the private land owned by others recorded for the purpose of owning a building on such land has no relation with the issue of whether or not the building constructed on the land owned by others is a "legitimate building." If the building is not a "legitimate building," the case must be dealt with pursuant to applicable construction laws and regulations. And the recordation of superficies is an entirely different matter from the recordation of the interests in a building. As regards the building occupation permit required by the Regulations Governing Land Registration, Article 70, Paragraph 1, and the provision of the second paragraph of the same article that “with respect to a building constructed before the implementation of the construction regulation regime for which no building occupation permit was issued, the applicant shall produce documentary evidence issued by the authority in charge of the construction or by the office of the hsiang, township, city, or precinct or evidence of payment of the house tax and water and electricity bills made before the implementation of the construction regulation regime if the building and the land on which the building sits belong to the same owner; and in addition thereto, the applicant must produce documentary evidence to support his use of the land if the building and the land on which the building sits do not belong to the same owner,” are texts whose provisions are meant to refer to the recordation of "legitimate buildings." This "legitimate building" requirement is adopted by the Guidelines for Review on the Registration of Superficies Acquired by Prescription issued by the Ministry of Interior per letter dated August 17, 1988, and transplanted into the system of recordation of superficies to prescribe in Section 5, Subsection 1, thereof that "a person making use of land for the purpose of [owning] a building thereon shall produce the certificates required by Article 70 of the Regulations Governing Land Registration to show that the building is a legitimate building," making it impossible for a person who, having taken longtime peaceful and continuous possession of the private land owned by another person with proven intent to exercise superficies thereon, would otherwise be legally entitled to acquire superficies over the land by prescription, to have the recordation of his superficies perfected because of his inability to produce the required certificates in respect of such legitimate building. Such rule is contrary to the purpose of the Constitution in protecting the people*s property rights and must be rendered inoperative. Incidentally, it must be noted that where a person is recorded as the owner of a superficies upon fulfillment of the acquisitive prescription, the owner of the land is not deprived of his title to the land and is thus continuously liable to payment of all tax and dues thereon. For this reason, if a dispute arises between them over the rent or other matters in connection with the lease of the land, the case, in the light of the general principle of law as embodied in Article 876 of the Civil Code, must be submitted to a decision of the court to ensure a balance of interests between the parties.
      
    • *Translated by Raymond T. Chu.
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