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  • Interpretation
  • No.379
  • Date
  • 1995/05/12
  • Issue
    • Where the certificate of self-tilling ability is subsequently cancelled because the land transferee is found to be incapable of cultivating the land, is the land administration office entitled to delete the recordation already approved on the ground of nullification of the certificate of self-tilling ability?
  • Holding
    •        That transfer of ownership to private farmland may be made only to a transferee capable of cultivating the land by himself is specifically set forth in the Land Act under Article 30, Paragraph 1, the first sentence. And in applying for recordation of transfer of ownership to farmland, the transferee is required by Land Recording Regulations, Article 82, Paragraph 1, Subparagraph 1, the first sentence, to produce a certificate of self-tilling ability. Inasmuch as the recording office is charged with the duty to carry out a prima facie review of the certificate of self-tilling ability, it is also empowered to revoke its approval for recordation of the transfer of ownership and delete the same after the effectuation thereof if the respective hsiang, township, city or precinct office in charge finds that the transferee is not actually capable of self-tilling and cancels the certificate of self-tilling ability, whereby the “self-tilling ability” of the transferee to which the original recordation of the transfer of the ownership appertains is rendered fictitious.
  • Reasoning
    •        The land policy of the state as proclaimed by the Constitution in Article 143, Paragraph 4, is that in the distribution and readjustment of land the state shall in principle assist self-farming landowners and persons who make use of the land by themselves. To bring this constitutional principle into reality, the Land Act provides under Article 30, Paragraph 1, the first sentence, that transfer of ownership to private farmland may be made only to a transferee capable of cultivating the land by himself and provides further in Paragraph 2 thereof that a transfer in violation of such requirement will be null and void.
      
    •        When handling an application for recordation of transfer of the title to farmland, the land administration office, in pursuance of the provision of the Land Recording Regulations, Art. 82, Paragraph 1, Subparagraph 1, the first sentence, relies on the certificate of self-tilling ability issued by the office of the hsiang, township, city or precinct where the applicant maintains his household registration to determine if the transferee is capable of cultivating by himself. If the hsiang, township, city or precinct office in charge, after having issued to a transferee a certificate of self-tilling ability, finds that the transferee does not meet the elements required for the self-tilling ability by the Precautionary Matters on Submission of Application and Issuance of Self-tilling Certificate established by the Ministry of Interior, and thereby cancels the certificate, the “self-tilling ability” of the transferee based on which the land administration office gave its approval to the application for recordation of the transfer of the ownership is now rendered fictitious, and its act of such approval, being defective, is certainly revocable and the recordation of the transfer of the ownership may be deleted. The interpretation given in Directive T. 62 N. 6795 (Executive Yuan, 1973) is consistent with the essence of the Land Act as it is not intended to provide for the acquisition or loss of or alteration to any right of people through the issue of administrative order. 
      
    •        While a transferee who applies for the transfer of ownership based on a contract of sale acquires the title by virtue of a juristic act, the approval granted by a land administration office for the recordation of the transfer of the title to private farmland is preconditioned upon the production by the transferee of a certificate of self-tilling ability. If this precondition no longer exists as a result of the cancellation of the certificate of self-tilling ability, the element required for recordation of the transfer of ownership previously approved in administration is shown to be insufficient, and the recordation effectuated before should not be deemed to be free of defect. Thus, the land administration office is unquestionably entitled to revoke its act to allow recordation and accordingly delete such recordation of the transfer of the ownership. The deletion of such recordation of the transfer of the ownership is resultant from the cancellation of the certificate of self-tilling ability, rather than aimed at direct voidance of the sale, and hence has nothing to do with the determination of any private right. In the event of a dispute between the parties to the sale of land over the issue of whether the sale is null and void on the ground that the subject matter of the contract is one that cannot be performed, the issue may without doubt be bought to a civil court for adjudication.
      
    •        The purpose for the Land Act provision in Article 30, Paragraph 1, the first sentence, that transfer of ownership to private farmland may be made only to a transferee capable of cultivating the land by himself is to safeguard the public interest under the national land policy through the imposition of restraint. Whether the transferee of a private farmland is capable of self-cultivating is determined by the agency having charge of the issue of certificates of self-tilling ability. A transferee who, knowing that he is not capable of tilling the land, presents false information to support his application for a certificate of self-tilling ability, has acted unlawfully, and is not entitled to protection for his reliance, and must of course be held responsible for any possible legal consequence. If the transferee has not acted unlawfully, but an incorrect certificate of self-tilling ability was issued by mistake by the administrative agency, based on which the land administration office processed the ownership transfer recordation, such transfer of ownership must also be treated as null and void for the purpose of safeguarding the public interest and under Article 30, Paragraph 2, of the Land Act. Consequently, the deletion of the recordation should not be deemed to be illegal. As regards how his reliance interest may be compensated, this is a separate issue. Incidentally, where a bona fide third person acquires rights in the land in reliance on such recordation, he should not be retroactively deprived of such right simply because of the nullification of the recordation, as we have so expounded in our Interpretation Yuan-tze No.1919. 
      
    • *Translated by Raymond T. Chu.
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