Land recording is the public system of officially documenting real property, with a public reliance effect according to law (See Article 43 of the Land Act). To deal with general land recording, the authority concerned shall ensure a strict substantial review process (e.g., investigating cadastres, publishing the locations of recording districts and recording deadlines, receiving documents, and reviewing and making official notices (See Article 48 of the Land Act). Within the period of official notice, if any interested landowner objects to such recording or finds such recording to be in error, the land administrative authority concerned shall mediate any dispute. If there is any disagreement with the result of mediation, the petitioner shall appeal to the judicial organ for determination of ownership within the designated period (See Article 59 of the Land Act). In addition, to ensure that the content of the recording is detailed and correct, Article 69 of the Land Act provides: " After completion of a recording, if recording officials or any interested persons realize the recording is in error or the recording has been lost, unless such persons apply in writing to and receive approval from the upper level authority concerned, the recording can not be amended." To enforce the intent of “amending a recording” as referred to in this Article, Paragraph 1 of Article 122 of the Regulations Governing Land Registration provides: “After completion of a recording, recording officials or interested persons who realize the recording is in error or the recording has been lost, shall apply to amend such recording. The recording organ, after applying to and receiving approval from the upper level authority concerned, can then amend such recording." The current Regulations (now Article 134) were promulgated (amended and promulgated by (86) N. T. T. Directive No. 8477506 of the Ministry of the Interior on July 12, 1995, and enforced by (86) T. N. T. Directive No. 841117 on September 1, 1995) by the Ministry of the Interior according to the authorization of Paragraph 2 of Article 37 of the Land Act. The purpose of such an amending system is to ensure the correction of the error and prevent the loss of recording, to ensure the correctness of land recording, and to protect the property rights of the people.
The term “error and loss” in Article 69 of the Land Act, according to the aforementioned Article 14 of the Regulations Governing Land Registration, "means that the content of the recording does not match that of the original recording instruments" (The current Regulations Governing Land Registration are now Article 13, and they add "the word ‘loss’ means what should have been recorded but was not recorded" in the latter part.) According to empirical practice, amendment of an error in a recording is restricted to the identity of the original recording (See Administrative Court Precedent A. D.72 of 1959 and Item 7 of the Supplementary Regulations of the Amendment to Recording Acts and Regulations, promulgated by (81) T. N. T. Letter No. 8173958 of the Ministry of the Interior on May 22, 1992). Thus, the provision of Article 69 of the Land Act is to amend a recording within the scope which does not hamper the identity of such recording. That is, the land administrative organ shall maintain detailed and correct recording according to the original recording instruments, but the land administrative organ shall not directly judge the ownership when there is a dispute over a recorded legal relation. The purpose of the aforementioned Paragraph 1 of Article 122 of the Regulations Governing Land Registration is to enforce the intent of Article 69 of the Land Act, and is based on Paragraph 2 of Article 37 of the same Act, and its regulatory content does not add non-statutory restraints on the property right of the people, nor does it conflict with Article 15 (protection of property) and Article 23 (principle of statutory reservation) of the Constitution.
Though Paragraph 2 of Article 37 of the Land Act authorizes the central land administrative organ to promulgate the Regulations Governing Land Registration, the content of the Regulations shall coincide with the intent of authorization, and can not conflict with the Constitution (See Article 172 of the Constitution and J.Y. Interpretations Nos. 406 and 286). According to Article 69 of the Land Act, the error or loss of recording, "unless applied for in writing and approved by the upper level authority concerned, can not be amended." It already, according to the Act, designates the upper level authority concerned of the original recording organ as the approval organ of the amended recording, "being investigated as true and approved" as the process of law. There is no allowance for the authority concerned to authorize any other organ to perform the power by administrative order. Paragraph 2 of Article 122 of the aforementioned Regulations Governing Land Registration provides:" If the error in or loss of recording mentioned in the preceding paragraph is purely due to negligence on the part of the recording officials, and evidenced by the original recording instruments, the upper level land administrative organ can authorize such recording organ to amend it directly"; Paragraph 3 of the same Article states: "The scope of authorization for the recording organ to amend the recording directly shall be stipulated by the upper level land administrative organ"; Section 1 of Paragraph 1 of Article 29 of the same Regulations provides: "Amending a recording,” according to Paragraph 2 of Article 122, " means that it can be recorded directly by the recording organ", and no application for approval is needed from the upper level organ (the current Regulations are now the latter part of Section 2 of Paragraph 1 of Article 28). Though they [these provisions of authorization] offer the convenience of simplifying the administrative process, they exceed the scope of the authorization of Paragraph 2 of Article 37. Besides, they do not coincide with the intent of Article 69 of the same Act, that those who amend a recording are expected to be conscientious and cautious in order to meet with the approval of the upper level organ, and as such they [these provisions of authorization] violate Article 23 (principle of statutory reservation) and Article 172 (principle of preemption of statute) of the Constitution. Therefore, these provisions shall cease to be effective no later than one year after the date of promulgation of this interpretation.
*Translated by Jer -Shenq Shieh.