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  • Interpretation
  • No.564
  • Date
  • 2003/08/08
  • Issue
    • Does an administrative agency in charge of traffic control have the authority to permit or prohibit the placement of vendors’ stalls on arcades for the purpose of maintaining the orderly flow of traffic, thereby restraining the property right of the owners of the land on which the arcades are set up, if it is so specifically authorized by law?
  • Holding
    •     Article 15 of the Constitution contains explicit words stating that the people shall be guaranteed the right of property. Taking into consideration the necessity in the furtherance of the public interest, however, the state is not prohibited from prescribing by law reasonable restraints on land ownership lawfully acquired by the people. Under the Act Governing the Punishment of Violation of Road Traffic Regulations, Article 82, Paragraph 1, Subparagraph 10, the competent authority may order a person who sets up a stall at a place where no stalls are permitted to take down the stall and get rid of any obstruction to traffic and may, in addition thereto, impose on such person or his employer a fine of not less than 1,200 and not more than 2,400 New Taiwan Dollars. While this constitutes a restriction on the exercise of the property right of the landowner in the case of private land, the purpose of such restriction is to ensure unobstructed traffic of pedestrians and vehicles and the impact thereof on land utilization is rather insignificant. Hence, such restriction has not gone beyond the principle of proportionality and is not in conflict with the purpose of the Constitution in protecting the right of property.
      
    •     Where the act of announcement of an administrative agency imposes any restraint on the exercise of the property right of the people, the elements and standard required of such act of announcement must be specifically and clearly prescribed by law. The power granted to an administrative agency by the Act Governing the Punishment of Violation of Road Traffic Regulations, Article 82, Paragraph 1, Subparagraph 10, to announce the prohibition of setting up stalls is certainly limited to the degree necessary for maintaining orderly traffic flow.  Inasmuch as arcade is defined by Article 3, Subparagraph 1, of said Act to be a passageway, its owner has the duty from the beginning of its construction to provide for public passage, and it is in principle not usable for setting up vendors’ stalls without permission. To the extent that the announcement of the competent authority to grant or prohibit permission for the placement of stalls on such passageways based on the authority granted by the aforesaid provision (See Article 83, Subparagraph 2, of the Act) constitutes a restraint on the exercise of the property right of the people, such act of announcement may be done only upon taking into account such factors as the traffic flow and width of the road in the area where stalls are prohibited or permitted and the specific hours during which stalls are prohibited. The provision of said Article 82, Paragraph 1, Subparagraph 10, being insufficiently specific and clear, the competent authority must make prompt review and revision of the provision or alternatively make more specific prescription through the enactment of separate laws.
      
  • Reasoning
    •     Article 15 of the Constitution contains explicit words stating that the people shall be guaranteed the right of property. Taking into consideration the necessity in the furtherance of the public interest, however, the state is not prohibited from prescribing by law reasonable restraints on land ownership lawfully acquired by the people. Nevertheless, the question of how far such restraints may go so that they will not exceed the degree of toleration which the property right of the people should undergo must be weighed against the purpose of the act, the means of restriction, and the impact of such restraint. If the means is appropriate in relation to the purpose, and the impact of the restriction on the use of the land is rather insignificant, then such restriction is a social obligation that the people should assume while enjoying the right of property, and the restriction, being imposed by the state under law to a reasonable degree, is not in conflict with the purpose of the Constitution in protecting the property right of the people. 
      
    •     While the owner of an arcade constructed so as to allow passage by the public is not deprived of his right and capacity to manage, make use of, collect profits from, and dispose of the same, his act of utilization thereof should not in principle obstruct the passage. This is the reason for which it is included in the Act Governing the Punishment of Violation of Road Traffic Regulations, Article 3, Subparagraph 1, as a road to be put under control thereunder. Under said Act, Article 82, Paragraph 1, Subparagraph 10, the competent authority may order a person who sets up a stall at a place where no stalls are permitted to take down the stall and get rid of any obstruction to traffic and may, in addition thereto, impose on such person or his employer a fine of not less than 1,200 and not more than 2,400 New Taiwan Dollars. Furthermore, under Article 83, Subparagraph 2, of said Act, a person who sets up a stall on the passageway or road and refuses to take it down may be fined for an amount of not less than 300 and not more than 600 New Taiwan Dollars and may additionally be ordered to remove the stall. All such provisions are designed to put a restriction on setting up stalls on arcades to ensure unobstructed traffic flow and are thus appropriate. Although the announcement of the competent authority issued under Article 82, Paragraph 1, Subparagraph 10, of said Act to prohibit the setting up of stalls on particular roads or sections of roads is intended to raise the amounts of fine for the purpose of strengthening traffic control rather than imposing a restraint on the property right of the people, its application to individual cases does result in restraint on the property right of the people. Thus, when considering the appropriateness of such restraint, the degree of damage it may cause must also be taken into account. To the extent that the act of the owner bound by the restrictive provisions cited above is the setting up of a stall without permission, the owner is not banned from filing an application under law for a permit to set up a stall or to make other use of the land. Furthermore, in light of the social responsibility assumed by the owner of an arcade for public interest, the state is offering various types of incentives such as tax exemption or reduction to alleviate his burden. This makes the restraint on the property right of the people rather insignificant and is thus not in conflict with the principle of proportionality embodied in Article 23 of the Constitution; nor does it go beyond the degree of toleration that should be taken in light of social responsibility or call for any special sacrifice from individuals for which the state is bound to provide compensation. We do not find such restriction to be contrary to the Constitutional provision for protecting the property right of the people.
      
    •     We have made it repeatedly clear in our Interpretations that if the act of the state involves any constraint on the exercise of any right of the people, the prerequisites for taking such act must be explicitly prescribed by law and that when an administrative agency is authorized by law to issue relevant ordinances or to take any action the law must be clear and specific. As the Act Governing the Punishment of Violation of  Road Traffic Regulations grants an administrative agency under Article 82, Paragraph 1, Subparagraph 10, the power to issue announcements to prohibit the setting up of stalls and under Article 83, Subparagraph 2, the authority to permit the setting up of stalls, such announcements issued by an administrative agency under said provisions to prohibit or permit the placement of stalls, to the extent that it affects the exercise of the property right of the people, may be made only after realistic review of such factors as the traffic flow and width of the road in the respective area open or closed for stalls and the hours during which stalls are prohibited or permitted (e.g., holidays, festivals) in light of the legislative purpose of said Act for maintaining a safe, orderly traffic flow to make them consistent with the essence of our opinion given above. That being so, we do not believe that the provisions of the Act Governing the Punishment of Violation of Road Traffic Regulations, Article 82, Paragraph 1, Subparagraph 10, and Article 83, Subparagraph 2, aresufficiently clear and precise by way of categorization of the elements required for issuing announcements to prohibit or permit vendors’ stalls. To enable the competent authority to maintain appropriate control consistent with the legislative purpose, the authorities concerned must make prompt review and revision of and supplement to such provisions or alternatively make more specific prescriptions through the enactment of separate laws, so that the competent authority may take into account the rights of the people while maintaining the orderly flow of traffic. Incidentally, it has been made clear by this Yuan in our Interpretation No. 511 that the guideline set forth in said Act by which the minimum amount of fine is raised based on the date the traffic violator appears before the authority provides a criterion of penalty established by the competent authority within its power of discretion authorized by law and that such guideline is not in conflict with the principle of reservation of law (Gesetzesvorbehalt); nor is it contrary to the spirit of the Constitution in protecting the people’s right to property. 
      
    • *Translated by Raymond T. Chu.
      
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