Go to Content Area :::

Constitutional Court R.O.C. (Taiwan) Logo

Home Sitemap 中文版
   

Decisions

Home > Decisions > Interpretations (before 2022)
:::
:::
  • Interpretation
  • No.350【Under Translation】
  • Date
  • 1994/06/03
  • Issue
    • Are the provisions of the Guidelines for the Review of Recording of Superficies Acquired by Prescription, which require that the owner be specified at the time of application and that the application be dismissed even if finding out the name, address, etc., of the owner is impossible, consistent with the Constitution?
  • Holding
    •        Section 8, Paragraph 1 and 2, of the Guidelines for the Review of Recording of Superficies Acquired by Prescription as issued by the Ministry of the Interior per a letter dated August 17, 1988, provides that the current address of the landowner or supervisor shall be specified at the time of the application filed by the possessor.  The foregoing provisions, which are necessary in order to protect the rights and interests of a landowner as the superficies is a kind of restrictive right over things that exist in relation to ownership, are not found to be in conflict with the Constitution.  Nevertheless, according to Article 48, Subparagraph 2, and Article 49, Paragraph 1, Subparagraph 4, of the Regulations Governing Land Registration, if such information is not specified, an amendment thereof shall be made and, failing such amendment, the application for registration shall be dismissed.  It is understood that the aforesaid Guidelines are supplemental to the said Regulations and that, when applied simultaneously, these provisions would prevent an applicant from completing the registration of his superficies, who could not make such amendment even though he could prove the impossibility of finding out the name, address, etc., of the landowner or supervisor of the land.  The foregoing provisions will then contradict the constitutional intent to protect the property rights of the people and, to such extent, shall not be applied.
  • Reasoning
    •        Articles 768 through 772 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 original right holder to better fulfill his social responsibility of making positive use of his property and by recognizing the value of the order established through long-term possession.  This property right, being acquired by operation of law, shall be guaranteed by the Constitution.  The foregoing has been made clear by this Yuan through Interpretation No. 291.  Section 8, Paragraph 1 and 2, of the Guidelines for the Review of Recording of Superficies Acquired by Prescription as issued by the Ministry of the Interior per the Letter Ref. TNTT-621464 dated August 17, 1988, provides respectively, “The current address of the landowner and the one described in the recording and visitation book shall be specified at the time of the application filed by the possessor and that, in case of the death of the landowner, the name and current address of the heir to the landowner shall be specified.” “If the landowner is a sacrifice-offering association, a temple, or a house of worship, and the supervisor thereof is dead, the name and address of the new supervisor shall be specified in the application after the amendment to the registration of such supervisor is made.”  The foregoing provisions, which are necessary in order to protect the rights and interests of a landowner as the superficies is a kind of restrictive right over things that exist in relation to ownership, are not found to be in conflict with the Constitution.  Nevertheless, according to Article 48, Subparagraph 2, and Article 49, Paragraph 1, Subparagraph 4, of the Regulations Governing Land Registration, if such information is not specified, an amendment thereof shall be made and, failing such amendment, the application for registration shall be dismissed.  It is understood that the aforesaid Guidelines are supplemental to the said Regulations and that, when applied simultaneously, these provisions would prevent an applicant from completing the registration of his superficies, who could not make such amendment even though he could prove the impossibility of finding out the name, address, etc., of the landowner or supervisor of the land.  The foregoing provisions will then contradict the constitutional intent to protect the property rights of the people and, to such extent, shall not be applied. 
      
    • Translated by Vincent C. Kuan
Back Top