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  • Interpretation
  • No.732【Expropriation of Lands Adjacent to Mass Rapid Transit System Facilities】
  • Date
  • 2015/09/25
  • Issue
    • Is it unconstitutional that the provisions at issue allow competent authorities to expropriate adjacent lands, which are not necessarily required for transportation, in accordance with applicable laws for the purpose of land development?
  • Holding
    •        Article 7, Paragraph 4, of the Mass Rapid Transit Act amended on May 30, 2001 (hereinafter the “Mass Rapid Transit Act 2001”) provides: “The land required for . . . the development of areas adjacent to the Mass Rapid Transit system . . . may be expropriated by competent authorities in accordance with applicable laws.”  Article 7, Paragraph 3, of the Mass Rapid Transit Act promulgated on July 1, 1988 (hereinafter the “Mass Rapid Transit Act 1988”) provides: “Lands used for joint development . . . may be expropriated.”  Article 9, Paragraph 1, of the Regulations for the Joint Development of Land Adjacent to or Contiguous with the Mass Rapid Transit System (hereinafter the “Regulations for Joint Development of Land”) provides: “Lands used for joint development . . . may be acquired by competent authorities in accordance with applicable laws. . .”  These provisions allow competent authorities to expropriate adjacent lands, which are not lands necessarily required for transportation as prescribed under Article 3, Sub-paragraph 2, of the Land Expropriation Act (hereinafter the “Expropriation Act”) and Article 208, Paragraph 2, of the Land Act, in accordance with applicable laws for the purpose of land development.  What lies within this scope is inconsistent with the principle of proportionality under Article 23 of the Constitution, as well as the meaning and purpose of the constitutional guarantee of the people’s rights to property and freedom of residence, and shall no longer be applicable from the date of this Interpretation.
  • Reasoning
    •        Article 15 of the Constitution provides that the people’s right to property shall be protected.  The purpose of this Article is to guarantee each individual the freedom to exercise their rights to use, profit by, and dispose of their property during the existence of the property, and to prevent infringements by the government or any third party, so as to guarantee individual freedom, personal development, and maintain personal dignity (see J.Y. Interpretation Nos. 400 and 709).  Article 143 of the Constitution expressly states that private ownership of land acquired by the people in accordance with the laws shall be protected and restricted by law.  Moreover, people’s freedom of residence is protected under Article 10 of the Constitution.  The expropriation of private land by the State not only imposes a restriction on people’s right to property, but also has a serious impact on the freedom of residence of persons, if any, legally residing on the expropriated land(s).  In addition to giving reasonable and prompt compensation to landowners in accordance with the laws, the expropriation of private land by the State must be necessary for the purpose of public use or other public interests so as not to contradict Article 23 of the Constitution.
      
    •        Article 7, Paragraph 4, of the Mass Rapid Transit Act 2001 provides: “The land required for . . . the development of areas adjacent to the Mass Rapid Transit system . . . may be expropriated by competent authorities in accordance with applicable laws” (hereinafter “Provision 1”).  Provision 1 allows the competent authorities to expropriate adjacent lands close to the routes, depots, or stations of the Mass Rapid Transit system (hereinafter the “Mass Rapid Transit System Facilities”) in accordance with applicable laws for the purpose of land development.  Here, “expropriation in accordance with applicable laws” refers to land expropriation in accordance with the Expropriation Act.  Article 1, Paragraph 2, of the Expropriation Act provides: “Land expropriation shall be governed by this Act.  Matters not provided for in this Act shall be governed by other applicable laws.”  Thus, other applicable laws shall apply when the Expropriation Act does not mention the scope of land expropriation.  Article 3, Sub-paragraph 2, of the Expropriation Act provides: “The State may expropriate private lands in order to carry out any of the undertakings listed in the following sub-paragraphs to serve the needs of the public.  The scope of the expropriation should be limited according to what a given undertaking requires: … (2) Transportation. …”  Accordingly, the expropriation must conform to the undertakings set out in Article 3 of the Expropriation Act and its scope must indeed be such as is required for carrying out these undertakings.  The Mass Rapid Transit system is a form of transportation prescribed in Article 3, Sub-paragraph 2, of the Expropriation Act.  The scope of land which may be expropriated for the Mass Rapid Transit system is therefore limited to the extent required for such an undertaking.  Under Provision 1, adjacent lands which may be expropriated for the purpose of land development include lands immediately adjacent to Mass Rapid Transit System Facilities, lands located in the same street block and which can be integrated into the construction site of lands required for Mass Rapid Transit System Facilities, and lands located in street blocks neighboring Mass Rapid Transit System Facilities and connected via an underpass or overpass (see Article 7, Paragraph 2, of the Mass Rapid Transit Act 2001).  It is hard to say that the scope of this type of expropriated land is wholly within what is required for the Mass Rapid Transit system.  The expropriation of private land not necessarily required for the Mass Rapid Transit system is itself a restriction of the people’s right to property and also has a serious impact on the freedom of residence of persons legally residing there.  Article 7, Paragraph 3, of the Mass Rapid Transit Act 1988 provides: “Lands used for joint development . . . may be expropriated” (hereinafter “Provision 2”).  Although there is no “expropriation in accordance with applicable laws” requirement in Provision 2, the expropriation of private land by the State nonetheless shall be in accordance with applicable laws in force at the time.  Article 9, Paragraph 1, of the Regulations for Joint Development of Land provides: “Lands used for joint development . . . may be acquired by the competent authority in accordance with applicable laws. . .” (hereinafter “Provision 3”).  Provision 3 also sets forth an “expropriation in accordance with applicable laws” requirement for acquisition of private lands used for joint development (by the State).  The Expropriation Act was enacted and promulgated on February 2, 2000.  Given that the Mass Rapid Transit Act 1988 applies in one of the underlying cases that the petitioners argued in this petition, the legal basis for the expropriation of private lands by the State in such case shall be the applicable regulations set forth in the Land Act in force at the time.  With regard to the scope of land which may be expropriated by the State, Article 208 of the Land Act provides: “By meeting the requirements of the following public undertakings the State may compulsorily purchase private lands according to the provisions of this Act, but the scope of the expropriation should be limited according to what a given undertaking requires:.. (2) Transportation…”  Therefore, in addition to that the expropriation must be necessary for carrying out the undertakings set out in Article 208 of the Land Act, the scope of land which may be expropriated must, indeed, be such as is required for carrying out the said undertaking.  Nevertheless, Provisions 2 and 3, which allow the expropriation of lands used for joint development by the State in order to carry out the transportation purposes of the Mass Rapid Transit system, as well as the Mass Rapid Transit Act 1988, which contains the said “lands used for joint development” requirement, set no limit to the scope of “lands used for joint development”.  It is hard to say that the scope of land which may be expropriated in accordance with Provisions 2 and 3 is wholly within what is required for the Mass Rapid Transit system.  The expropriation of private land not necessarily required for the Mass Rapid Transit system is itself a restriction of the people’s right to property and also has a serious impact on the freedom of residence of persons legally residing there.
      
    •        If the expropriation of land by the State, which deprives the people of their land ownership and may even greatly impact the freedom of residence of persons legally residing on the expropriated land(s), is not done for a public cause, then it must conform to the legitimate purposes of other public interests.  The expropriation of land necessarily for the Mass Rapid Transit System is a taking that fulfills the purpose of building a transportation system for public use.  In addition, the development of adjacent land carried out by competent authorities does have its legitimate public interest purpose because it uses resources of land effectively, promotes local development, and helps obtain funding for the construction of the Mass Rapid Transit system (see Office of the Secretariat, Legislative Yuan, Special Issue No. 114 – The Mass Rapid Transit Act 253 (Office of the Secretariat, Legislative Yuan eds., 1989) (referring to the legislative purpose of the Act)).  Yet, when the State expropriates adjacent land that lies outside what is required for transportation (hereinafter “land not required for transportation”) in accordance with applicable laws for the purposes of using resources of land, promoting local development and assisting in obtaining funding for construction, the expropriation leads to a redistribution or transfer of the good of the resources of land to the State or some other private owners, thereby making it such that the original owners of the land are forced to make a special sacrifice of the loss of their land.  Furthermore, in order to achieve the purposes of using the resources of land, promoting local development, and obtaining funding for construction, as a last resort these goals may be attained by cooperating in joint- or co-development on preferential terms with the owners of the land, or by means of a redrawing of urban land such that after the land has been re-arranged the original landowners may still be recipients of the redistributed land, or by zone expropriation such that the original owners of the land receive land of equivalent value to their original land, or by other appropriate and less harmful means to the owners of the land.  Provisions 1, 2, and 3 (hereinafter the “Provisions at issue”) are such that the owners of the land may be forced to make a special sacrifice when the expropriation leads to development of land not required for transportation.  These are not the only means that can be used nor are they the least harmful ways possible to attain the goals of the effective use of the resources of land, local development and helping the State to obtain funding for construction.  Inasmuch as the Provisions at issue allow competent authorities to expropriate lands not required for transportation in accordance with applicable laws for the purpose of land development, they are inconsistent with the constitutional principle of proportionality under Article 23 of the Constitution, as well as the meaning and purpose of the constitutional guarantee of the people’s rights to property and freedom of residence, and shall no longer be applicable from the date of this Interpretation.
      
    •        One of the petitioners alleged that Article 7, Paragraphs 1, 2, and 7, of the Mass Rapid Transit Act 2001, Article 4, Paragraph 1, and Article 6 of the Regulations for Joint Development of Land, the proviso of Article 10, Paragraph 2, and Articles 13, 14, and 15 of the Expropriation Act, which were applied in the judgment of the Supreme Administrative Court 99 Pan 1259 (2010) (hereinafter the “final and binding judgment”), are unconstitutional.  Nevertheless, this Court found that the aforementioned provisions were not applied in the final and binding judgment.  Thus, these provisions are insufficient to serve as a basis for a petition for interpretation.  On the other hand, another petitioner argued that Article 7 of the Mass Rapid Transit Act 1988, in respect of the phrase “adjacent areas of land” prescribed therein, is in violation of the principle of clarity and definiteness of law, and that Paragraph 1 of the same Article is in violation of the principle of proportionality.  However, in this Interpretation this Court has held that Provision 2 shall no longer be applicable in the circumstance where this Provision allows competent authorities to expropriate lands not necessarily required for transportation in accordance with Article 208, Sub-paragraph 2, of the Land Act for the purpose of land development.  Moreover, with regard to the meaning and purpose of this portion of the petition, the petitioner failed to specifically point out the unconstitutionality of the provisions mentioned above from an objective point of view.  Along these lines, the aforesaid petitions do not meet the requirements prescribed in Article 5, Paragraph 1, Sub-paragraph 2, of the Constitutional Interpretation Procedure Act and shall be dismissed accordingly.
      
    • ______________________
      
    • * Translated by Yen-Chia CHEN.
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