That the property right of the people shall be protected is clearly prescribed by Article 15 of the Constitution. The state may, however, expropriate in accordance with law a private property for public use or for other public interest wherever necessary. To the holder of the right to the property so expropriated, who has thus made special sacrifice for the public interest, the state must give reasonable compensation, and the amount of such compensation must be commensurate to the loss he/she has suffered. When the state legally exercises its power of eminent domain over land, it must give reasonable compensation to the owner of the land and the holders of other rights to the land, although the manner of compensation is subject to deliberation to be made by the Legislature within the specific scope of its discretion.
The right of the lessee of farmland is a right to farm the land owned by another person and to yield proceeds therefrom, and is a property right protected by the Constitution. When this right is terminated along with the extinction of the ownership to the farmland as a result of expropriation, it means that the lessee has thus made a special sacrifice of his/her property right for the public interest, for which the state must give the lessee reasonable compensation. Moreover, the rental for farmland must not exceed 37.5 percent of the total annual yield of the principal product of the main crop; the lessor of farmland may not terminate the lease created on such land or take the land back for self-tilling before expiration of the term of the lease or tien 1without a statutory reason; a contract of lease or tien shall remain in force with respect to the transferee in case the lessor transfers to a third person his/her ownership to the land before expiration of the lease created on such farmland, and the transferee shall apply jointly with the original lessee for recordation of alteration to the contract (See the Statute for the Reduction of Farmland Rent to 37.5 Percent, Art. 2, Par. 1, First Sentence; Art. 16, Art. 17, Par. 1; Art. 19, Pars. 1 and 2; and Art. 25). Consequently, the right of the lessee of a farmland has become a right in rem and thus something like an encumbrance on farmland. In the case of expropriation of farmland, the compensation is computed in principle by subrogation on the basis of the declared current value of the land prevailing in the period during which the land is expropriated (See the Statute for the Equalization of Land Rights, Art. 10; also see the Statute for the Condemnation of Land promulgated on February 2, 2000, Art. 30). Thus, the compensation for the value of all farmlands is computed and paid on the same basis regardless of whether or not the land is leasehold, and the compensation for the land value of leasehold farmland includes in reality the current value of the ownership to the farmland and the leasehold value with which the land is burdened.
The Statute for the Encouragement of Investments promulgated on September 10, 1960, (now repealed) provided in Article 28, Paragraphs 1 and 2, respectively, that “where a leasehold farmland within an area designated as industrial land is converted by the lessor into land for industrial use, the lessor may terminate the lease in respect of that part of the land as may be converted for such purpose, irrespective of whether the land is to be so used by the owner himself/herself or to be sold or leased for such purpose” and that “where the lessor terminates the lease under the preceding paragraph, he/she shall pay the lessee a compensation equal to one-third of the price of such land, in addition to the cost of land improvement which the lessee may have made and any agricultural crops which the lessee may not yet have harvested.” One of the stated legislative purposes for this Article was that: “….(2) The case of termination of the lease of farmland, resulting in loss on the part of the lessee of the use of the land which he/she has been cultivating, constitutes a tremendous loss for the lessee. Moreover, the prevalent social custom calls for payment by the lessor to the lessee of an entitlement in an amount equal to one-third of the value of the land upon termination of the lease. This is the reason for which Paragraph 2 of this Article is so designed.” This Article was amended and renumbered Article 38 on January 4, 1965, and was again amended and renumbered Article 54 on December 30, 1970. As the provision of Paragraph 2 of said Article, in requiring payment by the lessor to the lessee of a compensation equal to one-third of the value of the land, failed to take into account the land value increment tax the lessor might have to pay and furthermore, if the sum of increment tax payable by the lessor was exceedingly high, such a provision would become unreasonable as the compensation to the lessor could be less than what the lessee was entitled to, it was amended to read: “Where the lessor terminates the lease under the preceding paragraph, he/she shall pay the lessee of the farmland a compensation equal to one-third of the remaining amount of the selling price of such land after paying the land value increment tax, in addition to the cost of land improvement which the lessee may have made and any agricultural crops which the lessee may not yet have harvested.” Before the Statute for the Equalization of Urban Land Rights was superseded on February 2, 1977, by the Statute for the Equalization of Land Rights, there was no clear rule with respect to compensation for tenants of leasehold farmlands expropriated by the government. As a result, when a private leasehold farmland was expropriated by the government for the construction of public works, it often gave rise to the problem of how to compensate the tenant farmers. Therefore, when the Statute for the Equalization of Land Rights was undergoing revision, the new Article 11 was added to it by analogy to Article 54 of the Statute for the Encouragement of Investments to set out in Paragraph 1 thereof that “where the land expropriated in accordance with law is a leasehold farmland, the landowner shall pay the lessee of the farmland a compensation equal to one-third of the remaining amount of the land price received by him/her as a compensation after deducting therefrom the land value increment tax, and in addition thereto, the lessee shall be entitled to payment by the government of the cost of land improvement which the lessee may have made and any agricultural crops which the lessee may not yet have harvested” and in Paragraph 2 thereof that “the compensation to which the lessee is entitled under the preceding paragraph shall be withheld by the relevant authority when compensation to the landowner is paid or deposited in court, and shall be paid to the lessee by such authority.” By taking into consideration the jural relations between the owner and the lessee of the farmland and the business practices, this Article is meant to assess the value of the right to the lease created on the farmland at one-third of the remaining amount of the land price received by the land owner as a compensation after deducting therefrom the land value increment tax and to identify the landowner to be the receiver of the payment of such land price compensation, subject to withholding by the relevant authority when compensation to the landowner is paid or deposited in court, for payment to the lessee, an amount equal to the value of the right to the lease created on the farmland as a compensation for the lessee. The purpose of the Article is to set out that the land price compensation prescribed by the above law shall be computed in the manner of separate and individual assessment and paid by subrogation. In other words, the relevant authority shall by subrogation compute the land price compensation payable for the land based on the current value of the expropriated land as declared by the government; assess the value of each and every right with which the land is burdened, within the range of the compensation for the land value; make payments to the respective holders of such rights for and behalf of the landowner; and then pay the remaining amount to the owner of the land expropriated as his/her compensation (See the Statute for the Equalization of Land Rights, Art. 10; the Land Law, Art. 221; and the Enforcement Law of the Land Law, Art. 59; also see the Statute on Eminent Domain, Art. 35). It follows that Article 11 of the Statute for the Equalization of Land Rights quoted above is designed to regulate the procedure with respect to payment of land price compensation in the case of expropriation of farmland and the amounts to be distributed, and is thus consistent with the purpose of the Constitution in affording protection of the property right of the farmers as well as of the constitutional principle of compensation commensurate with the amount of loss. It does not go beyond the scope of compensation established by the Legislature at its discretion, and results in no encroachment upon the protection of the property right of landowners. It must be pointed out, however, that the social and economic developments in recent years have obviously resulted in changes to the structure of industries, and to adapt to the government policy on the use of farmland, the abovementioned provisions for assessment of the value of the lease of farmland as a burden on such leasehold land for the purpose of protecting the livelihood of farmers must be reviewed and revised as early as possible to the extent consistent with the purpose of the Constitution.
Furthermore, under the Law of the Procedure for Interpretations by the Grand Justices, Article 5, Paragraph 1, Subparagraph 2, where an individual, body corporate or political party, upon the institution of a litigation in accordance with legal procedure by reason of unlawful infringement of his/her or its constitutional right, has questions about whether the law or order applied by the court in its irrevocable final adjudication is contrary to the Constitution, he/she or it may file a petition for interpretation of the Constitution. Hence, whether or not an irrevocable final adjudication per se or the opinion of the court when applying a law or order in its irrevocable final adjudication is constitutional does not come within the scope in which the people may petition for constitutional interpretation. In the case before us, the Petitioner alleges that the opinion of the court on the provision of Article 42, Paragraph 1, of the Statute for the Equalization of Land Rights applied in its irrevocable final judgment at issue here has given rise to the question of being unconstitutional and petitions for pronouncement by this Court to invalidate said judgment. Based on our explanations given above, we have found that the petition does not meet the elements required by the Law of the Procedure for Interpretations by the Grand Justices, Article 5, Paragraph 1, Subparagraph 2, and must therefore be rejected under Subparagraph 3 of the same Article.
*Translated by Raymond T. Chu.