Under Article 38 of the Act for Upgrading Industries as promulgated on December 29, 1990, where an industrial entrepreneur who has leased or purchased any parcel of land or any standard factory building in an industrial zone fails to begin to make use of such land or building pursuant to the approved plan within one year from the date on which an approval is granted for the establishment of a factory as required by Article 35 of the Act, or fails to begin to make use of same within the period of extension granted under Article 36 of the Act, or uses such land or building for any purpose other than that proposed in the approved plan, the authority in charge of industry may exercise compulsory buyback of such land or factory building, as the case may be, at the original selling price (less depreciation value in case of a factory building or construction built by the purchaser on the land). This legislation is intended to ensure that the land and factory buildings in industrial zones will be put to timely use consistent with the purpose of upgrading industries and developing the national economy as well as preventing the entrepreneur*s resale of the land or building for profit by taking advantage of the development made by the State and the tax benefits and other incentives offered by the government. It is therefore essential to the promotion of the public interest and is consistent with the principle of proportionality embodied in Article 23 of the Constitution as well as the purpose of the Constitution in protecting the property right of the people.

       Additionally, under Article 34, Paragraph 1, of the Statute, when land, a standard factory building, or any other building in an industrial zone developed by the authority in charge of industry under this Act, with the exception of land for community development, is offered for sale, the purchaser of the land, standard factory building or any other building shall pay a contribution to the industrial zone development and administration fund in an amount equal to three percent (3%) or one percent (1%), respectively, of the purchase price. The contribution is a levy charged only on the entrepreneurs purchasing land, standard factory buildings or other buildings in an industrial zone to help finance the development and administration of the industrial zone, and is similar in nature to the special common levies and users* fees charged to all members of a group with common interest rather than a part of the purchase price for the land or building. Article 96 of the Enforcement Rules of the Act provides: "The terms *original purchase price of the land* and *original purchase price* in Article 38, Paragraph 1, Subparagraph 1, of the Act do not include the money paid together with the purchase price at the time of purchase as contribution to the industrial zone development and administration fund." This provision will not give rise to any problem in the case where the purchaser of land or building, although having failed to put the property to use within the one-year period as specified, has paid only the purchase price. If, however, the reason for the competent authority to exercise the compulsory buyback under Article 38 of the Act after an entrepreneur has bought the land or building is because of the occurrence of an event not attributable to the entrepreneur, the entrepreneur is not, ab initio, a member of the group with common interest to whom special common levies may be charged, nor has he/she entered into any utilitarian relation whereby he/she is obligated to pay such charges and fees. The condition and purpose for the collection of contributions to the development and administration fund being void, the legal ground for such levies as a part of the fund no longer exists, and any contribution received then becomes undue enrichment under public law. It follows that said article of the Enforcement Rules, in granting the competent authority the right to buy back at the original price without requiring the refund of the sum paid into the fund as a contribution thereto and levied at specified percentage, is in conflict with the purpose of the Constitution in protecting the right of the people and shall no longer be operative so as to preclude claims for restitution.

　　The issues of whether the occurrence of any event is attributable to the entrepreneur and whether he/she has received any other fair compensation are matters to be determined based on facts, and are beyond the scope of this Interpretation.

       The Act for Upgrading Industries as promulgated on December 29, 1990, provides in Article 35 (now Article 58 of the Act as amended on December 31, 1999): "An industrial entrepreneur who has leased or purchased land in an industrial zone shall commence the use of such land pursuant to the approved plan within one year from the date on which an approval for the establishment of a factory is granted. An entrepreneur who is unable to commence the use of the land within such period for any reason may file an application with the authority in charge of industry for an extension of the period. However, only one extension may be granted for a period up to one year," and in Article 36 (now Article 59 of the amended Act): "An industrial entrepreneur who has leased or purchased land or any standard factory building in an industrial zone shall complete the use of such land or building pursuant to the approved plan and shall obtain a certificate of registration for his/her factory. An entrepreneur who is unable to complete the use of such land or building within the specified time limit for any reason may apply for an extension of the time limit. However, only three extensions may be granted, and the length of extension shall not exceed three years." Additionally, Article 38 (now Article 61) of the Act provides: "Where an industrial entrepreneur who has leased or purchased any parcel of land or any standard factory building in an industrial zone fails to comply with Article 35 or 36 hereof or fails to make use of such land or building pursuant to the approved plan, the authority in charge of industry may take any of the following actions: 1) To exercise compulsory buyback of such land at the original selling price or, as the case may require, to exercise compulsory buyback of such building at the original selling price less depreciation value of the building; or 2) To terminate the lease and repossess the land or building leased. For construction that may have been built by the entrepreneur on the land to be bought back or repossessed on a compulsory basis under the preceding paragraph, compensation shall be allowed in an amount equal to the remainder of the original cost of construction less depreciation value of the construction." The provision for compulsory buyback is intended to ensure that land and factory buildings in industrial zones will be put to timely use consistent with the purposes of upgrading industries and developing the national economy as well as preventing the entrepreneur*s resale of the land or building for profit by taking advantage of the development made by the State and the tax benefits and other incentives offered by the government. It is therefore essential to the promotion of the public interest that the competent authority is given the right to buy back on a compulsory basis if the land or building is not put to use within the statutory time limit pursuant to the approved plan or, even if it is used, the use is different from the approved plan, regardless of the reason therefor. We hold that this Act is consistent with the principle of proportionality embodied in Article 23 of the Constitution as well as the purpose of the Constitution in protecting the property right of the people.

      Article 34, Paragraph 1, of said Act (now Article 55, Paragraph 1) provides: "When land, a standard factory building, or any other building in an industrial zone developed by the authority in charge of industry under this Act, with the exception of land for community development, is offered for sale, the purchaser shall pay a contribution to the industrial zone development and administration fund at the rates specified as follows: 1) For land: three percent (3%) of the purchase price; or 2) For standard factory buildings or other buildings: one percent (1%) of the purchase price." The purposes for which the fund may be used are prescribed in Article 6 of the "Rules Governing the Collection, Disbursement, Safekeeping, and Application of the Industrial Zone Development and Administration Fund" issued by the Executive Yuan on October 7, 1991, to include: "(1) Investment in or loan for development of industrial zones or joint investment in businesses related with industrial zones; (2) Funds needed by the authority in charge of industry for compulsory buyback or repossession of land or a standard factory building or for compensation to be granted for construction built by the entrepreneur on the land purchased or leased under Article 38 of the Statute; (3) Where the land cost of a developed industrial zone has become higher than the price of land in an adjacent area available for similar use because of accumulation of interest accrued on the development cost as a result of long-term lack of sale of the land, the interest accrued on loans out of the Fund may be used to subsidize such land cost; (4) Expenses for research, planning, and publicity activities in connection with the development of industrial zones and expenditures of the Committee for the Safekeeping and Application of the Fund and the organization in charge of the administration of the industrial zone; (5) Financial institutions* fees for handling loans financed by the Fund; and (6) Other related expenses." Accordingly, the contribution is a levy charged only on the entrepreneurs purchasing land, standard factory buildings or other buildings in an industrial zone to help finance the development and administration of the industrial zone, and is similar in nature to the special common levies and users* fees charged to all members of a group with common interest rather than a part of the purchase price for the land or building.　Article 96 of the Enforcement Rules of the Act provides: "The terms *original purchase price of the land* and *original purchase price* in Article 38, Paragraph 1, Subparagraph 1, of the Act do not include the money paid together with the purchase price at the time of purchase as contribution to the industrial zone development and administration fund." This provision will not give rise to any problem in the case where the purchaser of land or building, although having failed to put the property to use within the one-year period as specified, has paid only the purchase price. If, however, the reason for the competent authority to exercise the compulsory buyback under Article 38 of the Act after an entrepreneur has bought the land or building is because of the occurrence of an event not attributable to the entrepreneur, the entrepreneur is not, ab initio, a member of the group with common interest to whom special common levies may be charged, nor has he/she entered into any utilitarian relation whereby he/she is obligated to pay such levies and fees. Consequently, the condition and purpose for the collection of contributions to the development and administration fund do not exist. Moreover, suppose the original entrepreneur chooses after the compulsory buyback to purchase a new plant site in another industrial zone, he/she will not be credited for the amount of contribution paid by him/her for the previous development and administration fund. Rather, he/she will be taxed once again by the competent authority for such contribution at a specified percentage. Therefore, we see no reason for the government to keep the money paid as contribution to the [previous] fund.

      The legal ground for such levies as a part of the fund being no longer in existence in case of the entrepreneur*s failure to begin the use of the industrial land or building purchased by him/her within the statutory time limit pursuant to the approved plan is caused by the occurrence of an event not attributable to the entrepreneur, any money received has then become undue enrichment in public law, and the entrepreneur is of course entitled to institute an action for refund of his/her payment under the Administrative Proceedings Act. It follows that said article of the Enforcement Rules, in granting the competent authority the right to buy back at the original price without requiring the refund of the sum paid into the fund as a contribution thereto and levied at a specified percentage, is in conflict with the purpose of the Constitution in protecting the right of the people and shall no longer be operative so as to preclude claims for restitution.　The issues of whether the occurrence of any event is attributable to the entrepreneur and whether he/she has received any other fair compensation are matters to be determined based on facts, and are beyond the scope of this Interpretation.  

*Translated by Raymond T. Chu.