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.562
  • Date
  • 2003/07/11
  • Issue
    • Where the provision of Paragraph 1 of Article 34-1 of the Land Act that the disposal of or alteration to and the creation of encumbrance on co-owned land or construction may be effected only upon agreement of a majority of co-owners and the consent of those who own an aggregate of one half or more of the shares of such property is made applicable by Paragraph 5 thereof to joint ownership, a Ministry of Interior directive rules that such provision is not applicable to the disposal of or alteration to and the creation of encumbrance on the share of land or construction under ownership in common if such share is jointly owned by two or more persons. Is such rule in conflict with the Land Act and legally valid?
  • Holding
    •     The Land Act provides in Article 34-1, Paragraph 1: “The disposal of or alteration to and the creation of rights of superficies, yung-tien,  servitude or dien  on co-owned land or construction improvement thereon may be effected only upon agreement of a majority of co-owners and the consent of those who own an aggregate of one half or more of the shares of such land or construction improvement; where those who give their consent represent over two-thirds of all shares thereof, no count shall be made of the number of co-owners.” Paragraph 5 of the same article provides that “the prescription set forth in the preceding four paragraphs shall apply mutatis mutandis to joint ownership.”  The purpose of the legislation is to promote the effective utilization of common property for the furtherance of public interest while protecting the right and interest of the co-owners. Where the co-owned land or construction improvement referred to in Paragraph 1 of said Article is disposed of by way of transfer of such common property, it is a conveyance of the ownership to such property; and the so-called share of a common property means the portion of the ownership to the common property owned by the co-owner, which is by nature the same as ownership. If the share of a real property is under joint ownership, the assignment thereof is of course subject to the provision of Paragraph 1 of Article 34-1 of the Land Act by mutatis mutandis application pursuant to Paragraph 5 thereof. Clause 12 of the Guidelines for the Implementation of the amended Article 34-1 of the Land Act as promulgated by the Ministry of Interior per Directive Tai (77) Nei-Ti-Tze No. 621767 dated August 18, 1988, provides that “where the share of land or construction under ownership in common is jointly owned by two or more persons, Paragraph 1 of this Article is not applicable to the disposal of or alteration to such share or creation of encumbrance thereon by the joint owners.” To the extent that said clause imposes a restriction that does not exist in the Land Act provision cited above on the exercise by joint owners of their ownership to the jointly owned real property, it must be rendered invalid.
  • Reasoning
    •     Co-ownership is a system whereby the ownership of a thing belongs to two or more persons in conjunction and its existence is because of the need of society. As all co-owners have the one and same ownership, however, the exercise of the respective right of each co-owner is subject to correlative restraint (See the Civil Code, Art. 819, Par. 2; Art. 820 and Art. 828). Thus, the activities of using and receiving profits from and disposing of such common property will unavoidably be affected and even the free circulation of common property will be obstructed, thereby resulting in detriment to the social economy. The Land Act provides in Article 34-1, Paragraphs 1 to 5: “The disposal of or alteration to and the creation of rights of superficies, yung-tien, servitude or dien on co-owned land or construction improvement may be effected only upon agreement of a majority of co-owners and the consent of those who own an aggregate of one half or more of the shares of such land or construction improvement; where those who give their consent represent over two-thirds of all shares thereof, no count shall be made of the number of co-owners,” “A co-owner who makes disposal of or alteration or creates encumbrance under the preceding paragraph shall give other co-owners prior written notices or alternatively publish the same if it is impossible to give such notices,” “The co-owners referred to in the first paragraph hereof shall be jointly and severally liable for payment of the consideration or compensation due other co-owners and shall present, when applying for recordation of change of the right, evidence to show that other co-owners have already received such consideration or compensation or the same has been deposited in court. Where a co-owner acquires any right over immovables as a result of such disposal, alteration or creation of encumbrance, he shall apply for relevant recordation for and on behalf of the other co-owners,” “Where a co-owner desires to sell his portion of the share, the other co-owners shall have the preemptive right to buy such portion of the share either individually or jointly at the same price as may be offered by other persons,” “The provisions in the preceding four paragraphs shall apply mutatis mutandis to joint ownership.” The purpose of the legislation is to facilitate transactions in ownership to real property, resolve disputes over co-owned immovables, and promote the effective utilization of common property for the furtherance of public interest while protecting the right and interest of co-owners by precluding the application of Article 819, Paragraph 2 and Article 828, Paragraph 2, of the Civil Code.
      
    •     It must be noted that the share of a common property means the portion of the ownership owned by a co-owner of the common property, which is by nature the same as ownership. Under Paragraph 1 of Article 34-1 of the Land Act, disposal of co-owned land or construction improvement is subject to the same prescription along with alteration to and creation of rights of superficies, yung-tien, servitude or dien on such land and construction improvement. Thus, so far as transfer of the common property is concerned, the so-called disposal of the co-owned land or construction improvement means the conveyance of the ownership to such property. Likewise, the assignment of other rights over things to the common property means the disposal of such rights over things. If the provision of Paragraph 1 of Article 34-1 of the Land Act cited above is made applicable to assignment of the share of a real property under joint ownership, it will facilitate transactions in ownership to real propertyor, furthermore, either minimize the number of co-owners or eliminate the relationship of co-ownership to promote the effective utilization of common property and to bring about the legislative purpose of the Land Act as explained above. For this reason, Paragraph 1 of Article 34-1 of the Land Act is certainly applicable in pursuance of Paragraph 5 thereof to assignment of the share of a real property under joint ownership. As regards the situation where the relationship of joint ownership to the shares of a jointly owned real property is nullified in consequence of transfer of such shares by the joint owners (See the Civil Code, Art. 830, Par. 1), it is distinguishable from the situation where joint owners cause the recordation of the joint ownership changed to ownership in common in that the joint owners in the latter case aim at adjusting the internal legal relationship of the common property. While the Ministry of Interior, for the purpose of implementing the Land Act provisions, has the power ex officio to issue decrees to give necessary interpretations and instructions, such decrees may only deal with details and technical matters in relation to the enforcement of the law and may neither contradict the Land Act nor add restrictions that do not exist in the Act. Clause 12 of the Guidelines for the Implementation of the Amended Article 34-1 of the Land Act as promulgated by the Ministry of Interior per Directive Tai (77) Nei-Ti-Tze No. 621767 dated August 18, 1988, provides that “where the share of land or construction under ownership in common is jointly owned by two or more persons, paragraph 1 of this article is not applicable to the disposal of or alteration to such share or creation of encumbrance thereon by the joint owners.” To the extent that said clause imposes a restriction that does not exist in the Land Act provision cited above on the exercise by joint owners of their ownership to the jointly owned real property, it must be rendered invalid.
      
    • *Translated by Raymond T. Chu.
      
Back Top