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  • Interpretation
  • No.739【Review Involving Self-implemented Urban Land Consolidation】
  • Date
  • 2016/07/29
  • Issue
    • Is the requirement set forth in Article 8, Paragraph 1 of the Regulation for Encouraging Landowners to Handle Urban Land Consolidation (hereinafter “the Encouraging Consolidation Regulation”) to apply for the approval of organizing a preparatory committee by the initiators constitutional? Are the provisions set forth in Article 9, Subparagraph 3 and Article 20, Paragraph 1 of the Regulation which mandate that the preparatory committee shall apply for the approval of the proposed consolidation range, Article 9, Subparagraph 6 and Article 26, Paragraph 1 of the same Regulation which mandate that the preparatory committee shall apply for the approval of the consolidation project, publicly announce, and notify to the landowners constitutional? Are the procedures under the same Regulation regarding that the competent authorities approve the proposed consolidation range and grant a permission to implement the consolidation project constitutional? Is the ratio for reaching an agreement set forth in Article 58, Paragraph 3 of the Equalization of Land Rights Act constitutional?
  • Holding
    •        The requirement of Article 8, Paragraph 1 of the Regulation for Encouraging Landowners to Handle Urban Land Consolidation to apply for the approval of organizing a preparatory committee by the initiators does not include the provision stating the mandated ratio between the amount of land areas within the proposed consolidation range owned by the initiators and the sum of all land areas within the same proposed consolidation range; further the provision that initiators shall be seven or more landowners does not mandate the ratio between the number and the total amount of all landowners within the proposed consolidation range, thus are inconsistent with the due process of law in the administrative procedure required under the Constitution. Article 9, Subparagraph 3 and Article 20, Paragraph 1 of the same Regulation provide that the preparatory committee shall apply for the approval of the proposed consolidation range; Article 9, Subparagraph 6 and Article 26, Paragraph 1 of the same Regulation provide that the preparatory committee shall apply for the approval of the consolidation project, publicly announce, and notify to the landowners, etc., those should have been under the authority of the consolidation committee but being handed over the preparatory committee, thus inconsistent with the meaning and purpose of Article 58, Paragraph 1 of the Equalization of Land Rights Act, and exceed the purpose and scope of authorization set forth by Paragraph 2 of the same Article, violate the principle of legal reservation. The procedures provided by the Regulation regarding for the competent authorities to approve the proposed consolidation range do not require the competent authorities to set up appropriate organizations to review, offer the interested parties opportunities to be heard, and respectively execute the service of the approved dispositions to the landowners within the consolidation range other than the applicants; the procedures regarding for the competent authorities to grant permissions to implement the consolidation project do not require the competent authorities to set up appropriate organizations to review, respectively execute the service of the consolidation project related information to the landowners within the consolidation range other than the applicants, conduct hearings by public manner, so that the interested parties may appear to vocally express and deliberate opinions, consider all hearing records, explicate the reasons for adoption or not adoption and thereafter make the approval, together with the approved urban land consolidation project, respectively execute the service to every landowners and other stake-holders within the consolidation range, etc., those are inconsistent with the due process of law in the administrative procedure required under the Constitution. All provisions mentioned above violate the meanings and purposes of the right of property and the freedom of residence of the people protected under the Constitution. The relevant authorities shall, in accordance with the meaning and intention of this Interpretation, with regard to the parts that violate the Constitution mentioned above, consider amending within one year from the date this Interpretation is issued. The said unconstitutional parts of the provisions shall become null and void if they have not been amended within one year from the issuance of this Interpretation.
      
    •        The provision set forth in Article 58, Paragraph 3 of the Equalization of Land Rights Act can hardly be deemed to have violated the principle of proportionality or the principle of equality.
      
  • Reasoning
    •        One of the petitioners, in accordance with the provisions set forth in Article 5, Paragraph 1, Subparagraph 2 of the Judicial Yuan Grand Justice Hear Petition Act, with regard to Article 58, Paragraph 3 of the Equalization of Land Rights Act and Article 8, Paragraph 1 and Article 20 of the Regulation for Encouraging Landowners to Handle Urban Land Consolidation (hereinafter “the Encouraging Consolidation Regulation”) applied in the Supreme Administrative Court 100 Pan 1979 (2011) Judgment (hereinafter “the final judgment”), filed a petition for interpretation. Another petitioner the Civil Division of the Taiwan Taoyuan District Court, in accordance with J.Y. Interpretation Nos. 371, 572, and 590, also with regard to Article 58, Paragraph 3 of the Equalization of Land Rights Act, filed a petition for interpretation. All of the provisions mentioned above are the objects of interpretation. Furthermore, neither Article 26, Paragraph 1 of the Encouraging Consolidation Regulation as applied in the final judgment has been petitioned for interpretation by the petitioners, nor Article 9, Subparagraphs 3 and 6 as not applied in the final judgment have been petitioned for interpretation by the parties. However, Article 26, Paragraph 1 of the above Regulation regarding for the preparatory committee to apply for a permission granted by the competent authorities to implement the urban land consolidation is, indeed, the subsequent phase following Article 20 of the same Regulation, one of the objects of interpretation, regarding for the preparatory committee to apply for the approval of the proposed consolidation project; the provisions set forth in Article 9, Subparagraph 3 of the same Regulation regarding for the preparatory committee to apply for the approval of the proposed consolidation range, and Subparagraph 6 of the same Article regarding for the preparatory committee to apply for the approval of the consolidation project and publicly announce, and notify to the landowners are the antecedent questions for that object of interpretation, are of significant relevance to Article 20 of the same Regulation, therefore, should be included in the scope of review (See J.Y. Interpretation No. 709), so described first.
      
    •        Article 15 of the Constitution provides that the property right of the people shall be guaranteed to ensure that an individual may exercise his or her right and capability to freely use, profit, and dispose based on the ongoing state of the property, and prevent any harm from the public powers or third parties, so as to realize the individual freedom, develop the personal character, and uphold the dignity. (See J.Y. Interpretation No. 400) Article 10 of the Constitution provides that the people shall have the freedom of residence, aiming at ensuring that the people shall have the freedom to choose their residential dwelling, making their privacy livings without any interference. (See J.Y. Interpretation No. 443) To advance the public interest, the State, of course, may restrict the property right or the freedom of residence of the people by laws or regulations expressly authorized by laws. However, those regulations made under the authorization of the laws may not still contradict the intent, content, and scope of the authorization, so as to comply with the principle of legal reservation prescribed under Article 23 of the Constitution. Further, the implication of the principle of due process of law prescribed in the Constitution, taking into compound considerations of factors as the kinds of fundamental rights involved, the strength and scope of restrictions, the public interests pursued, the appropriateness of functions of the decision-making authority, exist or lack of the availability of alternative procedures, or the cost of a variety of possible procedures, etc., the legislators shall enact the corresponding legal procedures. (See J.Y. Interpretation Nos. 689, 709)
      
    •        A self-implemented urban land consolidation case is initiated by the preparatory committee which is organized under the approval of the competent authorities applied by some landowners, the initiation would force the landowners within the consolidation range (Named by Articles 56 to 60-1 of the Equalization of Land Rights Act as consolidation area, consolidation district, and by the Encouraging Consolidation Regulation as consolidation area, consolidation range, consolidation area range, etc.) to participate in the self-implemented urban consolidation process, encountering the dangers that the right of property and the freedom of residence of the people have been restricted. In addition, after the approval of the self-implemented urban land consolidation range, for the reason that the competent authorities may publicly announce to prohibit or restrict the transfer of the land and the new building of the construction improvement within the consolidation range, the landowners will result in certain restriction in terms of the rights and capacities of the usage, profit, disposition of their lands and construction improvements; while implementing the consolidation project, they shall also, in accordance with the contents of the consolidation project approved by the competent authorities, undertake the land for the need of public facilities, the expenses of the construction, the fees of the consolidation, and the interest on the loan, and may enjoy the allocation of the land only when the remaining land, after subtracting the burden for consolidation, is up to the criteria for minimum allocation area (Articles 59, 60, and 60-1of the Equalization of Land Rights Act, Article 2 of the Encouraging Consolidation Regulation, Articles 11 to 13 of the Regulation Governing the Implementation of Urban Land Consolidation), and be subject to the restriction of the right of property and the freedom of residence. The requirements of the application to the competent authorities for the approval of organizing a preparatory committee, the procedures with which the competent authorities shall comply when they approve proposed consolidation ranges and grant permissions to implement consolidation projects, and the provisions of ratio for reaching an agreement which are the legitimate requirements for the application for the approval of implementing consolidation projects,  are part of the totality of administrative procedures, shall be in compliance with the due process of law in the administrative procedure prescribed under the Constitution, so as to balance the rights and interests among the state, those who agree to participate in the consolidation, and those who disagree to participate in the consolidation, and thus, be permitted by the Constitution. (See J.Y. Interpretation Nos. 488, 709)
      
    •        Article 8, Paragraph 1 of the Encouraging Consolidation Regulation stipulates that: "A self-implemented urban land consolidation shall be initiated by more than half of the landowners or seven or more persons to organize the preparatory committee, and the initiators shall attach the range plots and copies of ownership certificates of the lands owned by them, to the competent authorities of the municipal or county (city) governments to apply for the approval..." Where there are less than 12 landowners, only more than half of the landowners are needed to apply for the approval of organizing the preparatory committee, regardless of the ratio between the amount of land areas within the proposed consolidation range owned by the initiators and the sum of all land areas within the same proposed consolidation range; where there are 12 or more landowners, only seven of them are needed to apply for the approval of organizing the preparatory committee, regardless of the ratio between the numbers of the initiators and the total amount of the landowners within the proposed consolidation range, or the ratio between the amount of land areas within the proposed consolidation range owned by the initiators and the sum of all land areas within the same proposed consolidation range. As this could have forced most of the landowners or other landowners who own more areas of lands to encounter the dangers that the right of property and the freedom of residence have been impaired, can hardly be deemed to be substantial due, do not comply with the due process of law in the administrative procedure required under the Constitution, and violate the meanings and intentions of the right of property and the freedom of residence protected under the Constitution.
      
    •        Article 58, Paragraph 1 of the Equalization of Land rights Act provides that: "In order to promote land use and accelerate the urban land consolidation, the competent authorities may encourage the landowners to organize a consolidation committee by themselves to handle the urban land consolidation..." Therefore the matter of urban land consolidation shall be managed by the consolidation committee. Paragraph 2 of the same Article provides that: "The regulations governing matters as the organization of the consolidation committee, office authorities, consolidation businesses, encouragement measures, etc., shall be formulated by the competent authorities of the central government." Although the regulation promulgated based on this authorization may include the provisions on the mattes of the organization and composition of the preparatory committee, the function of the committee shall be limited to the transitional mission to organize the consolidation committee, and shall not include those authorities fulfilled by the consolidation committee, so as not to violate the principle of legal reservation. Article 9, Subparagraphs 3 and 6 of the Encouraging Consolidation Regulation stipulate that: "Missions of the preparatory committee shall be as follows: … 3.Application for the approval of the proposed consolidation range... 6. For consolidation project …apply for the approval, publicly announce, and notify to the landowners." Article 20, Paragraph 1 provides: "Having organized the preparatory committee, it shall submit an application and attach plots and volumes listed below to the competent authorities of the municipal or county (city) governments to apply for the consolidation range..." So does Article 26, Paragraph 1 states: “The preparatory committee shall submit and attach books, figures, plots, and volumes listed below to the competent authorities of the municipal or county (city) governments to apply for a permission to implement the urban land consolidation: …” Those are authorities of the consolidation committee, not the kind of transitional mission to organize the consolidation committee, but conferred on the preparatory committee to be fulfilled. This is not only incompliance with the meaning and purposed of Article 58, Paragraph 1 of the Equalization of Land Rights Act, but also beyond the purpose and scope of the authorization prescribed under Paragraph 2 of the same Article, thus contrary to the principle of legal reservation. 
      
    •        The administrative activities of the competent authorities regarding the approval of the proposed consolidation range and granting permissions to implement the consolidation projects are necessary supervisory and reviewing decisions made through public powers with respect to each self-implemented urban land consolidation case, be indeed classified as administrative dispositions in nature, not only restrict the rights of property and freedoms of residence of the landowners within the consolidation range who disagree to participate in the consolidation, but also impact the rights and interests of holders with other kinds of rights on the original lands (See the provisions of Articles 37, 38 of the Encouraging Consolidation Regulation) The related regulations shall require the competent authorities not only to set up appropriate organizations to review, but also in accordance with the reviewed matters and the contents and effects of the dispositions, with respect to the extent of restriction of the right, to provide respectively the due administrative procedures to be satisfied. (See J.Y. Interpretation No. 709) The procedures provided by the Encouraging Consolidation Regulation regarding the competent authorities approve the proposed consolidation range do not require the competent authorities either to set up appropriate organizations to review, or to offer the interested parties opportunities to be heard prior to the approval, and do not respectively execute the service of the approved dispositions to the landowners within the consolidation range other than the applicants, neither, thus their opportunities to perceive related information and to timely be heard so as to assert or uphold their rights cannot be ensured; the procedures provided by the same Regulation regarding for the competent authorities to grant permissions to implement the consolidation projects do not require the competent authorities either to set up appropriate organizations to review, or to respectively execute the service of the consolidation project related information to the landowners within the consolidation range other than the applicants, and do not stipulate the competent authorities to conduct hearings by public manner, so that the interested parties may appear to vocally express and deliberate opinions, consider all hearing records, explicate the reasons for adoption or not adoption and thereafter make the approval, together with the approved urban land consolidation project, respectively execute the service to every landowners and other stake-holders within the consolidation range, etc., thus their opportunities to perceive related information and to timely participate in the hearings so as to assert or uphold their rights cannot be ensured. These are inconsistent with the due process of law in the administrative procedures required under the Constitution.
      
    •        With respect to the parts mentioned in prior paragraphs regarding provisions of the Encouraging Consolidation Regulation that violate the Constitution, relevant authorities shall, in accordance with the meaning and purpose of this Interpretation, consider amending within one year from the date this Interpretation is issued. The said unconstitutional parts of the provisions shall become null and void if they have not been amended within one year from the issuance of this Interpretation.
      
    •        Article 58, Paragraph 3 of the Equalization of Land Rights Act provides that: "Urban land consolidation handled by the consolidation committee shall be agreed by more than half of the landowners within the consolidation area and the amount of areas of the lands owned by them shall be more than half of the sum of all areas of the lands within the same consolidation area, and implemented after permissions shall be granted by the competent authorities.” An urban land consolidation involves not only the property rights and the residence freedoms of those within the consolidation range who disagree to participate in the consolidation, but also the realization of important public interests, the rights and interests of property and inhabitable living environment of those who agree to participate in the consolidation, and the rights and interests of the stake-holders with other kinds of rights on the original lands. A question regarding for the ratio of agreement not be so low as to violate the due process of law in the administrative procedure required under the Constitution is indeed the free will of legislative formation. (See J.Y. Interpretation No. 709)  Even if the provision mentioned above adopts the same ration of agreement as the one set forth in Article 57 of the same Act, and does not follow Article 22, Paragraph 1 of the Urban Renewal Act which adopts a variety of ratios of agreement classified into different categories, it can hardly be deemed to have reached to the extent of violating the principle of proportionality and the principle of equality. However, the relevant authorities should review and concern whether or not the proposed self-implemented urban land consolidation areas have been proposed detail projects, whether or not those areas belong to the ones set forth in Subparagraphs of Article 56, Paragraph 1 of the Equalization of Land Rights Act in which the urban land consolidation may be carried out, or whether or not the consolidation ranges have been enlisted by the competent authorities as the lands for local multi-district development projects, or if there are factors as the imminence of implementing the urban land consolidation, etc. (See the provisions of Article 4 of the Encouraging Consolidation Regulation, Article 24 of the Urban Planning Law, and Article 22, Paragraph 1 of the Urban Renewal Act), and to timely review the ratio for reaching an agreement for the application, as needs to be pointed out.
      
    • ______________________
      
    • * Translated by Ching P SHIH.
      
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