Go to Content Area :::

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

Home Sitemap 中文版
   

Decisions

Home > Decisions > Docket Search > Before 2022
:::
:::
  • Interpretation
  • No.449
  • Date
  • 1998/03/13
  • Issue
    • What does the holding in Interpretation No. 363, stating “the application for the establishment of public facilities during the enforcement period of the Act of Encouragement of Investment shall conform to Article 3 of said Act,” mean?
  • Holding
    •        The Notice Regarding Rewards for Investment in the Establishment of Retail Markets in Taipei City stipulates that those who apply for investment to establish markets shall be “private parties or groups holding all of the rights of use to the private land as and for the market use”, which is an additional restriction not imposed by Article 53 of the Urban Planning Act, and shall not be applicable as held in J.Y. Interpretation No. 363.  The last sentence of the above-mentioned Interpretation stating, “the application for the establishment of public facilities during the enforcement period of the Act of Encouragement of Investment shall conform to Article 3 of said Act,” refers to the “development of businesses” under Paragraph 1, Subparagraph 11 of said Article 3.  Although a land proprietor who is an natural person, yet plans to form a company limited by shares, may be given priority to invest pursuant to Article 58-1, Paragraph 1 of said Act, whether or not such person may enjoy each respective kind of preference shall be determined by said Act.  The above-mentioned J.Y. Interpretation shall be accordingly supplemented.
  • Reasoning
    •        To enable private parties or groups to use publicly owned land or to acquire rights to land reserved for public use and owned by other people through intervention of governmental power, and thus accelerate the establishment of public facilities to improve urban development, the nation specifically stipulates in Article 53 of the Urban Planning Act that “if the land (reserved for public facilities) needed by private parties or groups that are approved for investment in urban planning ventures is publicly owned, an application may be filed to lease said publicly owned land from the authority in charge; if the land is privately owned and an agreement to purchase could not be reached, said purchase price shall be readily prepared, and an application requesting the municipality or county government of that jurisdiction to purchase said land on their behalf shall be filed.”  The prerequisites for such application to invest do not require the applicant to hold the rights of use to all privately owned land within the public-use land.  The condition set forth in Paragraph 2, Subparagraph 1-1 of the Notice Regarding Rewards for Investment in the Establishment of Retail Markets in Taipei City promulgated by the Taipei Municipality on July 23, 1981, states that the applicants must hold the rights of use to all the privately owned land as and for the market use, which has added a restriction not imposed upon by law.  Such restriction contravenes the objective of the law to urge governments of each level to diligently assist private parties in investments to build markets and improve urban development, is in violation of the constitutionally protected rights of the people, and hence shall not be applicable, as held in J.Y. Interpretation No. 363.  During the enforcement period of the Act of Encouragement of Investment, if in the application, the land used to build public facilities is acquired through negotiated purchase, mediation, or purchase at-value, this will interfere with the legally protected interests of the land proprietor.  Therefore, Article 58-1, Paragraph 1 of the Act of Encouragement of Investment, as amended and promulgated on December 30, 1984, (abrogated on December 31, 1990) states, “For investment in developing as yet undeveloped land reserved for public use pursuant to this Act, the proprietor of said land may enjoy priority.  However, in the event of no response or voluntary relinquishment by said land proprietor upon two months following service of written notice of the investment opportunity by the local government, other ‘public facility development of businesses’ may negotiate such purchase.”  As set forth in the original draft proposed by the Executive Yuan to the Legislative Yuan, it reads: “For investment in developing as yet undeveloped land reserved for public use pursuant to this Act, the investor shall negotiate such purchase directly.”  In contrast, it is evident the legislative intent was to give the land proprietor priority over the business developers to invest in setting up public facilities.  The last sentence of J.Y. Interpretation No. 363 stating, “the application for the establishment of public facilities during the enforcement period of the Act of Encouragement of Investment shall conform to Article 3 of said Act,” means that the business developers when applying for building public facilities shall conform to Paragraph 1, Subparagraph 11 of the Act.  Although the land proprietor, who is an natural person and has not formed a company limited by shares, may be given the priority to invest, whether or not such person may enjoy each respective kind of preference shall be determined by said Act.  The above-mentioned J.Y. Interpretation shall be accordingly supplemented. 
      
    • *Translated by Spenser Y. Hor.
Back Top