It is obvious from Article 23 and Article 143, Paragraph 1, of the Constitution that the state, for public necessity, can, according to law, restrict people’s land ownership or expropriate their land, even though the people’s property rights are guaranteed by the state. Typically, where the state invokes public necessity, it expropriates privately owned land and pays what it considers to be fair compensation. The requirements and procedures of expropriation, however, have not been provided for in the Constitution. However, Article 108, Paragraph 1, Subparagraph 14, of the Constitution has delegated these for regulation by the Legislature. Article 208, Subparagraph 9, of the Land Act, and Article 48 of the Urban Planning Act are in essence general clauses stipulating the purpose and end use of eminent domain. This does not mean that the state can arbitrarily expropriate land once the above purpose and end use have been declared. The state should still be restricted by the principle of proportionality implied in the relevant provisions of the Land Act and Article 49 of the Enforcement Act of Land Act. Therefore, the above Article 208, Subparagraph 9, of the Land Act and Article 48 of the Urban Planning Act are not inconsistent with the spirit of constitutional protection of the people’s property rights. As the expropriation of land is by its very nature a significant encroachment on the people’s property rights, the requirements of expropriation should be comprehensively laid out in the relevant laws. The language of various subparagraphs of the above-mentioned Article 208 of the Land Act is ambiguous, and the provisions of the expropriation procedure are not satisfactory. We herein recommend that the relevant organizations should review them and make the necessary amendments.

       Article 15 of the Constitution provides that the property right shall be guaranteed to the people. However, it is obvious from Article 23 and Article 143, Paragraph 1, of the Constitution that the state, for public necessity, can, according to law, restrict people’s land ownership or take their land. Typically, where the state invokes public necessity, it expropriates privately owned land and pays what it considers to be fair compensation. The requirements and procedures of expropriation have not been provided for in the Constitution. However, Article 108, Paragraph 1, Subparagraph 14, of the Constitution has delegated these for regulation by the legislature (See J.Y. Interpretation No. 236). Article 208 of the Land Act provides that: “the state, where the following public undertakings so require, may, according to law, expropriate privately owned land to the extent necessitated by these public undertakings: 1) military facilities; 2) transportation enterprises; 3) public utilities; 4) water resources; 5) public health; 6) government organizations, local self-governments and other public buildings; 7) educational, academic or charitable organizations; 8) state-owned enterprise, and 9) governmental projects undertaken for the public interest. The first sentence of Article 48 of the Urban Planning Act provides that “relevant organizations or undertakings should, according to law, expropriate the land which has been designated as reserve land for public facilities to be used by public utilities.” Both provisions are in essence general clauses stipulating the purpose and end use of eminent domain. This does not mean that the state can arbitrarily expropriate land because it has declared a purpose and end use covered by these two articles. The state should still be restricted by the principle of proportionality implied in the relevant provisions of the Land Act and Article 49 of the Enforcement Act of Land Act, which provides that “To the extent consistent with the aims of the expropriation, the expropriation should be conducted in such a way as to cause the minimum possible damage and to avoid encroachment upon agricultural land.” The procedure provided in Articles 222 to 235 of the Land Act has to be followed when the state does expropriate land. Furthermore, according to Article 219 of the same Act, the original owners are entitled to buy back any land which has been expropriated but has not been used by an undertaking which has received approval for the expropriation, during a specific period of time after receiving compensation. The aims of the above Article 208, Subparagraph 9, of the Land Act and the first sentence of Article 48 of the Urban Planning Act are to provide that where land is expropriated, its end use should be restricted to the necessity for constructing public utilities or public undertakings in the public interest. Thus, neither provision is inconsistent with the spirit of constitutional protection of the people’s property rights.  

       As the expropriation of land is by its very nature a significant encroachment on people’s property rights, the requirements and procedures of expropriation should be comprehensively laid out in the relevant laws. Purposes and end uses should be specified, and standards for balancing public interests and justifying emergency expropriation should be provided in legislation. Otherwise, the administrative organizations which manage the expropriation process and the judicial organizations which have to review the legality of any expropriation will have no benchmark by which to assess their deliberations. In particular, to balance public and private interests and to improve the transparency of decision-making, the opinions and comments of landowners and relevant persons should be heard before the finalization of an expropriation plan. The language of various subparagraphs of the above Article 208 of the Land Act is ambiguous and the provisions of the expropriation procedure are not satisfactory. We herein recommend that the relevant organizations should review them and make the necessary amendments.

*Translated by Dr. Tze-Shiou Chien.