A petition filed by an interested party who has questions on the application of our past Interpretations to a final judgment of the court of last resort, requesting a supplementary interpretation, shall be heard if it has been approved as a petition with legitimate reasons. (See our Interpretations Nos. 503 and 741.) The Petitioners of the two Petitions respectively filed administrative appeals and initiated court proceedings and each has received a final judgment from the Supreme Administrative Court, which referred to our No. 156 Interpretation (Hereafter the “Interpretation at issue”) as the basis of the judgment. The holding of the Interpretation at issue explained that: “the modification to urban plans by the competent authorities is a unilateral administrative action under public law, which, if directly restricting the rights or interests of the people within a certain region, or imposing additional obligations on such people, possesses the characteristics of an administrative act; if [such a modification] therefore causes improper or unlawful infringement on the rights and privileges of specific individuals or an identifiable group of individuals, they should be allowed to file administrative appeals or to initiate court proceedings in administrative court to seek redress for such an infringement. Our Interpretation No. 148 should be hereby supplemented and clarified [by the preceding].” It further stated in its reasoning: “the case-by-case modification of urban plans is different from the formulation of urban plans, the publication of urban plans, or the necessary modification based on the five-year periodic Comprehensive Review conducted by the competent formulating authorities (see Article 26 of the Urban Planning Act), [none of] which directly restricts the rights and privileges of the people within a certain region, nor imposes additional obligation on such people.” The Petitioners filed Petitions requesting supplementary interpretation regarding whether a modification based on the periodic Comprehensive Review of urban plans is an administrative act, and whether they can file administrative appeals and initiate court proceedings, which Petitions have been approved as petitions with legitimate reasons —as set out above.
Article 15 of the Constitution provides that the people’s right to property shall be guaranteed. This is to ensure an individual may exercise her or his right and capacity to freely use, profit from, or dispose of the property according to its current status, and to further prevent the incursions from state authorities or third parties, so as to realize individual freedom, to develop [her or his own] personality and to preserve [her or his] dignity. (See our Interpretations Nos. 400 and 739.) Furthermore, the people’s right to litigate, as protected by Article 16 of the Constitution, refers to the people’s right to ask the courts for remedies when their rights or lawful interests are violated. (See our Interpretation No. 736.) Based on the constitutional principle of ubi jus ibi remedium (“where there is a right, there must be a remedy”,) whenever the people’s rights or lawful interests are violated, they must be offered an opportunity to initiate court proceedings requesting a fair trial with due process of law, so as to receive a timely and effective remedy. This is the core value of the right to litigate. (See our Interpretations Nos. 396, 574 and 653.)
As applied in one of the initial cases, Article 26 of the Urban Planning Act (as amended and promulgated on September 6, 1973) provides: “No ad hoc changes shall be made to any urban plan that has been announced and implemented. However, the agency formulating the plan shall review the plan comprehensively at least once every five years and make necessary modifications according to developments while also taking the people’s suggestions into consideration. Land reserved for public facilities that are deemed unnecessary shall be de-reserved and used for other purposes.” As applied in the other initial case, Article 26 of the Urban Planning Act, currently in force, provides: “ (Paragraph 1) No ad hoc changes shall be made to any urban plan that has been announced and implemented. However, the agency formulating the plan shall review the plan comprehensively at least once every three or five years and make necessary modifications according to the developments while also taking the people’s suggestions into consideration. Land reserved for public facilities that are deemed unnecessary shall be de-reserved and used for other purposes. (Paragraph 2) The Ministry of the Interior shall stipulate the implementing regulations regarding the competent authorities, the operating procedures, and the criteria for review in the periodic Comprehensive Review of urban plans, as described in the preceding paragraph.” None of the above specifically regulates the scope of modifications or any possible content thereof. Article 4 of the Implementing Regulation of Periodic Comprehensive Review of Urban Plans, however, provides that necessary modifications can be made by the periodic Comprehensive Review to both the Master Plan and the Detail Plan; hence the scope and content of what may be modified is very broad. The necessary modifications to an original urban plan based on the periodic Comprehensive Reviews of the urban plan are regulations in nature, not administrative acts; however, as there is no clear limit on the scope of urban plan that may be included in the periodic Comprehensive Review, it is not possible to categorically conclude whether or not the content of an individual item directly restricts the rights and privileges of specific individuals within a certain region or of an identifiable group of individuals, or imposes additional obligations on such individuals. The agencies [with jurisdiction] over administrative appeals and the administrative courts should review the specific content of each individual item case by case in the announcement of a periodic Comprehensive Review to decide whether or not it possesses the characteristics of a case-by-case modification and whether or not it directly restricts the rights and privileges of specific individuals within a certain region or of an identifiable group of individuals, or imposes additional obligations on such individuals, so as to decide whether or not it possesses the characteristics of an administrative act and whether or not administrative appeals and court proceedings are available. If [an individual item is] considered as a case-by-case modification and hence possessing the characteristics of an administrative act, based on the constitutional principle of ubi jus ibi remedium, the persons affected should be allowed to seek redress for the infringement imposed by that specific part by filing an administrative appeal or initiate court proceedings in an administrative court, in compliance with the protection of the people’s right to appeal and the right to litigate offered by Article 16 of the Constitution. The preceding should be deemed supplementary to the Interpretation at issue.
Additionally, an urban plan (including any modifications based on the periodic Comprehensive Review; the same shall apply hereinafter) is a regulation in nature, not an administrative act. Under current law, even if the people consider the plan to be unlawful and to have violated their rights or lawful interests, they still have to wait until a subsequent administrative act is made to file an action of revocation (see Paragraph 1, Article 4 of the Administrative Litigation Act.) Nonetheless, the land use within the scope of an Urban Plan will be restricted right after the approval and announcement of the urban plan (see the related restrictive regulations in Article 6 and from Chapter 3 to Chapter 6 of the Urban Planning Act.) The influence of this on the rights and privileges of the people within the region is tremendous and the content of this is hardly distinguishable from that of an administrative act. In order to ensure timely, effective and complete protection for the people’s right to property and right to litigate, to allow them to immediately seek remedies by initiating court proceedings when their right to property is violated due to an urban plan, and to urge the competent authorities to comply with laws and regulations when contemplating, approving, and announcing urban plans, the legislative organs should amend related laws and regulations within two years after the publication of this Interpretation, so as to enable the people to seek redress for the infringement by initiating court proceedings against unlawful urban plans that they deem an infringement of their rights or lawful interests. Should [the legislative organs] fail to amend [the laws and regulations] in time, the remedial action procedures against unlawful administrative acts set forth in the Administrative Appeal Act and the Administrative Litigation Act are to be applied mutatis mutandis to the redress against any urban plan announced after two years from the publication of this Interpretation.
Regarding the request made by the Petitioner of one of the Petitions to interpret the unconstitutional part of Postscript 2 of Item No. 5 under section “3(1) Modification” in the detailed specification column, which provides that “…… should provide 30% of land for public facilities (land reserved for parks), and should also concentrate the reservations of mandatory vacant lots accordingly” in the Fu-Gong-Second-Zi Announcement No. 81086893 of Taipei City Government on December 14, 1992 “Case of Public Facilities Reservation in Taipei City (Comprehensive Review),” the question whether or not this Post Script directly restricts the rights and privileges of specific individuals within a certain region or of an identifiable group of individuals, or imposes additional obligations on such individuals, and therefore possesses the characteristics of an administrative act and hence makes administrative appeals and court proceedings available [to the Petitioner] should be decided by the administrative courts according to this Interpretation. As it is within the administrative courts’ authority to review the facts and apply the laws, [the Petitioner] should not request us for an interpretation. In sum, this part of the Petition of the Petitioner is at odds with Subparagraph 2, Paragraph 1, Article 5 of the Constitutional Interpretation Procedure Act and should not be heard according to Paragraph 3 of the same Article.
Chief Justice: The Honorable Justice HSU Tzong-Li
Justices: TSAI Jeong-Duen; SU CHEN Beyue; HUANG His-Chun; LO Chang-fa
Dennis Te-Chung TANG; WU Chen-Huan; TSAI Ming-Cheng; LIN Jiun-Yi
HSU Chih-Hsiung; CHANG Ching-Wen; HUANG Jui-Ming; JAN Sheng-Lin;
Jau-Yuan HWANG
(Honorable Justice HUANG Horng-Shya recused herself from the case.)