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  • Interpretation
  • No.383
  • Date
  • 1995/07/07
  • Issue
    • Are the Ordinance and Directive issues by the Ministry of Economic Affairs according to the authorization of Articles 1 and 34 of the Mining Act in contravention to the law and the Constitution?
  • Holding
    •        The competent authorities of the Ministry of Economic Affairs, provinces or special (Executive-Yuan-governed) municipalities may refuse to grant permission when they deem that the quarrying in the applied mining territory will be detrimental to public interests or economically unsuitable.  Article 34 of the Mining Act authorizes the Ministry of Economic Affairs to stop accepting applications for quarrying in specified mining territories in order to explore mineral resources, to demarcate mining territories, or to adjust the mineral outputs. Therefore, the competent authorities have the discretion with respect to mining applications.  On August 4, 1972, the Ministry of Economic Affairs issued “Ministry of Economic Affairs Ordinance (61 Jin-Kung-Tze) No. 21516” stating that, except for special reasons that allow the public to apply, all mines whose permissions have been revoked or vacated are temporarily reserved in order to be integrated with adjacent mining territories sharing the same mineral veins to reach the proper economies of scale and reasonable management, and to strengthen mining safety.  The same language is reiterated in Ministry of Economic Affairs Directive (75 Jin-Kung-Tze) No. 35906 (August 15, 1986), which indicates that those mines, including coal mines, whose permissions have been revoked or vacated are temporarily reserved and not open to public application.  The above-mentioned Ordinance and Directive are both declaratory instructions made by the central governing authority to its subordinate agencies under the proper authorization of the above-mentioned statute and are not in contravention to the Constitution.
  • Reasoning
    •        Article 143, Paragraph 2, of the Constitution states that mineral deposits which are embedded in the land shall belong to the State, regardless of the fact that private individuals may have acquired ownership over such land.  Article 1 of the Mining Act provides that all mines within the territory of the Republic of China belong to the State; no exploration or quarrying is allowed unless a mining right has been obtained according to the Mining Act; the competent authorities of the Ministry of Economic Affairs, provinces or the special (Executive-Yuan-governed) municipalities may refuse to grant permission when they deem that the quarrying in the applied mining territory will be to the detriment of public interests or economically unsuitable.  Article 34 of the same Act provides that the Ministry of Economic Affairs may stop accepting applications for quarrying in specified mining territories to explore mineral resources, to demarcate mining territories, or to adjust the mineral outputs.  Consequently, the competent authorities have the discretion with respect to mining applications.  The fundamental principles of the government’s coal industry policy shall be to ensure mining safety and to emphasize economic efficiency, because Taiwan’s coal mines are naturally inferior and the costs of coal production are rising and coal miners’ working environment is getting worse as the quarrying gets deeper and deeper.  On August 4, 1972, the Ministry of Economic Affairs issued “Ministry of Economic Affairs Ordinance (61 Jin-Kung-Tze) No. 21516” providing that “As quarrying in Taiwan’s coal mines gets deeper, the pressure on bedrock increases; the amount of ventilation decreases; geological conditions change dramatically; coal seams get thinner; and the amount of gas also increases.  All these problems coupled with mining right holders’ lack of capital and some miners’ lack of training keep the number of mining disasters high in spite of the government’s technical assistance and educational effort. Besides improving miner education and safety measures, except for special reasons to allow the public to apply, all mines whose permissions have been revoked or vacated are temporarily reserved in order to be integrated with adjacent mining territories sharing the same mineral veins to reach the proper economies of scale and reasonable management, and to strengthen mining safety.”  The same language is reiterated in Ministry of Economic Affairs Directive (75 Jin-Kung-Tze) No. 35906 (August 15, 1986), which provides that those mines, including coal mines, whose permissions have been revoked or vacated are temporarily reserved and not open to public application. Both the above-mentioned Ordinance and Directive are declaratory instructions made by the central governing authority to its subordinate agencies under the proper authorization of the above-mentioned statute and are not in contravention to the Constitution. 
      
    • *Translated by Professor Chun-Jen Chen.
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