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  • Interpretation
  • No.747【The landowner’s right to demand expropriation of the land surface right case】
  • Date
  • 2017/03/17
  • Issue
    • Does the landowner have the right to request the user of his or her land to apply for expropriation of the land surface right to the competent authority, if that party carries out road construction by tunneling under or passing over the land to the extent that goes beyond the scope of social responsibility that the owner may be expected to bear, resulting in special sacrifice on the landowner?
  • Holding
    •       Article 15 of the Constitution states clearly that the people’s right to property should be protected. According to Article 3 of the Land Expropriation Act, if a party intending to use a piece of privately-held land by tunneling under or passing over it to the extent that goes beyond the scope of social responsibility that the owner may be expected to bear, resulting in special sacrifice on the landowner, the landowner may request the user to apply for expropriation of the land surface rights, if the user has not followed the provisions for expropriation in applying to the competent body for expropriation of the land. However, Article 11 of the said Act promulgated on February 2, 2000 provides that “[b]efore… a user applies for expropriation of the land, he or she shall first negotiate with the landowner for an agreement on the purchase price or employ other means to attain it. Should the landowner refuse to take part in negotiations or be unable to reach an agreement therein, then an application for expropriation is to be made according to this Act.” (Section 1 of the same Article amended on January 4, 2012, with the same contents). Article 57, Paragraph 1 of the said Act provides that “[t]he party who plans to use a piece of land as set out in Article 3, by tunneling under or passing over the privately-held land, shall negotiate to acquire the land surface rights covering the area used. Should negotiations fail, the provisions for expropriation shall apply mutatis mutandis to the expropriation of the land surface right….” The latter two Articles (Article 11 and Article 57, Paragraph 1 of the Land Expropriation Act) fail to provide that the landowner is entitled to requesting the user to apply to the competent body for expropriation of the land surface rights. These two Articles are incompatible with Article 15 of the Constitution and Article 3 of the Land Expropriation Act. Within one year after the publication of this Interpretation, the competent authority shall amend the Land Expropriation Act in accordance with the meaning and spirit of this Interpretation. Should the said Act not be amended within the above period, the landowner may request the user to apply to the competent authority for expropriation of the land surface rights in accordance with the meaning and spirit of this Interpretation
      
  • Reasoning
    •       The Petitioners, Chih-Nan Temple and the representative of Chih-Nan Temple Construction & Development Corporation Ltd, Kao Chaowen (whose original name was Kao Chonghsing, subsequently changed to Kao Chaowen), claimed that the Taiwan Area National Highway Bureau under the Ministry of Transportation and Communications (hereafter Highway Bureau), in constructing the Muzha Tunnel on the northern section of the Second Highway, tunneled under the site of a proposed columbarium and carpark attached to the Ksitigarbha Hall, which they had designed and in which they had invested, without their consent. The said tunnel affected the safe development and use of the petitioners’ land. Their proposals to the Highway Bureau for an agreement on the purchase price and for expropriation were rejected. The petitioners filed an administrative litigation. In Judgment No. 465 (hereafter the Final Judgment) of 2012, the Supreme Administrative Court rules against the petitioners on the merit and rejected their appeal. The petitioners claim that the Highway Law and Article 11 of the Land Expropriation Act promulgated on February 2, 2000 as applied by Final Judgment violate the constitution. The said Article reads, “[b]efore… a user applies for expropriation of the land, he or she shall first negotiate with the landowner for an agreement on the purchase price or employ other means to attain it. Should the landowner refuse to take part in negotiations or be unable to reach an agreement therein, then an application for expropriation is to be made according to this Act.” (Section 1 of the same Article amended on January 4, 2012 with the same contents) (hereafter Disputed Regulation 1). It is evident that there are no regulations mandating expropriation or compensation for those people obliged to make a special sacrifice on their land as they are unable to make adequate use of their land due to the public road tunneling under it or passing over it. Holding this to touch on a constitutional quandary, the petitioners requested this Court for constitutional interpretation and also requested modification of J. Y. Interpretation No. 400. The petitioners also requested an interpretation of the Explanation of the Taipei City Urban Renewal Plan Section 3 No. 2, which reads, “The dotted lines on the diagram of the Second Highway Northern Office Renewal Plan indicate the section traversed by the highway tunnel. Since the depth of original soil and rock covering the top of the tunnel exceeds 35 meters, there is no obstacle to the landowners’ exercise of their rights and so no need to request purchase of the land. The Urban Renewal Plan needs not be changed. Should any persons with rights to the land raise contrary views, the Highway Bureau should acquire land use rights by means of negotiation” (hereafter Disputed Explanation). The petitioners claim that the Disputed Explanation exceeds the perimeter of its enabling law and, unrestricted by any law, imposes additional obligations on the people’s right to property which contravene the principle of legal clarity.
      
    •       The people may apply for constitutional interpretation, both to protect their own fundamental rights and to show forth the real meaning of the Constitution so as to uphold the constitutional order itself. Therefore, the scope of interpretation should include the laws and regulations necessarily connected to the concrete case. But it is not limited to only the petitioner’s intent or what is relevant to the Final Decision (see J.Y. Interpretation No. 445). Should it be impossible to provide a complete assessment of the petitioner’s intent unless other regulations not mentioned in the petitioner’s request for interpretation are considered, then consideration of these other regulations is both relevant and essential, which should be accepted as objects for the interpretation (see J. Y. Interpretation No. 737).  Although the petitioners in this case only held that Disputed Regulation 1 gave rise to a constitutional quandary, Disputed Regulation 2 should also be reviewed for there to be a complete assessment. Article 57, Paragraph 1 of the Land Expropriation Act provides “[t]he party who plans to use a piece of land as set out in Article 3, by tunneling under or passing over the privately-held land, shall negotiate to acquire the land surface rights covering the area used. Should negotiations fail, the provisions for expropriation shall apply mutatis mutandis to the expropriation of the land surface right….” (hereafter Disputed Regulation 2). It refers to persons employing the provisions set out in Article 3 and needing to use a piece of land by tunneling under or passing over it. It also sets out related regulations for expropriation of land rights. The petitioners in this case held that Disputed Regulation 1 is contrary to the Constitution. Yet, Disputed Regulation 2, which is related to it and necessarily so, shall also be reviewed by this Interpretation in compliance with Article 5, Paragraph 1, Subparagraph 2 of the Constitutional Court Procedure Act. The reasoning is as follows:
      
    •       Article 15 of the Constitution states that the people’s right to property should be protected. Its purpose is to guarantee that individuals may exercise their competence in the free use, profit from and disposal of their property as long as it is theirs. The owner shall be free from infringement by public powers or third persons, so that they may realize personal freedom, develop their personality and maintain their dignity (see J.Y. Interpretations Nos. 400, 709 and 732). The scope of the right to property protected by the Constitution is not limited to situations wherein the state deprives people of their right to ownership of property. When state institutions exercise their public powers according to law such as to damage the people’s property (such as incurring loss of ownership rights, or diminution in value or effective use and the like) to the extent that goes beyond the scope of social responsibility that the owner may be expected to bear, resulting in special sacrifice on the landowner, the state should provide reasonable compensation to conform to the intent of protecting the people’s right to property guaranteed by Article 15 of the Constitution (see J. Y. Interpretation 440). Should the state expropriate the right to land ownership, the people may on this basis request reasonable compensation for the harm caused to the loss of their right to ownership. Should the state expropriate land surface rights, the people may also request reasonable compensation for the diminution of any economic interest.
      
    •       When application according to the principles of expropriation is made to the competent body by the person needing to use the land, and when for a public interest the state must undertake a task that does in fact require tunneling under or passing over a land held by private persons to the extent that goes beyond the scope of social responsibility that the owner may be expected to bear, resulting in special sacrifice on the landowner without compensation, this amounts to an invasion of the people’s right to property and automatically should grant the people the right to actively seek expropriation so as to acquire the right to compensation. Article 57 Paragraph 2 of the Land Expropriation Act provides, “the person holding ownership rights over land mentioned in the preceding Paragraph and cannot use the land appropriately due to construction work, may request the person needing to use the land to expropriate land surface rights from the day the work began until one year after the work ends. The person using the land may not refuse.” This is so as to implement the purpose of the people’s right to property set out in Article 15 of the Constitution.
      
    •       Disputed Regulation 1 provides that, before a land is expropriated, there should be a sequence of negotiation to reach an agreement on the price or the use of other means to attain the same. But it does not provide whether the landowner has the right to request the person needing to use his or her land to apply to the competent authority for expropriation of the land or for expropriation of the land surface rights, for the sake of the construction of a public road either by passing over tunneling under the land to the extent that goes beyond the required social responsibility, resulting in special sacrifice on the landowner. When a public road, or the like, tunnels under or crosses over a piece of land, Disputed Regulation 1, taken alone, is insufficient for determining whether the state has provided protection in conformity with the meaning and spirit of the Constitution. Although Article 57 Paragraph 2 of the Land Expropriation Act mentioned above grants to the landowner the right to request expropriation, it is meant to apply to the situation that a construction, such as a public road crossing over or tunneling under the said piece of land, causes the land cannot be adequately used. If there is only a diminution in value not to the extent that the land can no longer be adequately used, this Paragraph is not applicable. Moreover, according to this Paragraph, the landowner may request the expropriation of his or her land, but not for the land surface rights. Therefore, when land is affected by the tunneling under or crossing over by a public road or the like, and not to the extent that the land can no longer be adequately used, the landowner may not use this Paragraph to request expropriation of the land surface rights. Also, although Disputed Regulation 2 provides that the person needing to use the land should, in accordance with the required scope of land to be used and by means of negotiation or following the provisions for expropriation, to acquire land surface rights, yet it does not provide that the landowner may actively request the person needing to use the land to apply for expropriation of land surface rights from the competent authority. Both Disputed Regulations 1 and 2 taken together, they do not conform to the constitutional principle that the landowner shall be able to request the user to apply to the competent authority for expropriation land surface rights. The competent authority must, according to the tenor of this Interpretation, within one year from the date of publication, amend the Land Expropriation Act as decreed. Should the law not be amended in time, the part stated above about expropriation of land surface rights must be implemented according to the tenor of this Interpretation.
      
    •       To uphold the stability of law, the landowner’s constitutional right to request for expropriation of land surface rights according to the tenor of this Interpretation must still be carried out within a fixed period of time. Upon amending the Disputed Regulation 2, the competent authority shall mandate the landowner exercise their right as mentioned above within a fixed period of time after he or she learns of the infringement of his or her right. Moreover, the amended law shall provide that the right to request expropriation is to expire at the end of a longer period of time after the completion of crossing or tunneling construction. As to the length of a fixed period of time, it shall be left for the legislative discretion to determine its reasonable scope. The competent authority shall also review and amend the one-year period of statute of limitations provided in Article 57, Paragraph 2 of the Land Expropriation Act in accordance with the tenor of this interpretation. It is pointed out here.  
      
    •       The petitioners have three months to request the user of their land to apply for expropriation of land surface rights. As to whether the petitioners’ land was tunneled under for a public road and whether there was any going beyond the scope of social responsibility to be borne resulting in special sacrifice on the landowner, these are matters of fact that lie outside the scope of this Interpretation. It is pointed out here as well. 
      
    •       The petitioners further claim that the Highway Act is contrary to the provisions set out in Articles 7 and 15 of the Constitution. Yet the provisions of the Highway Act were not applied in the Final Judgment. Moreover the petition merely refers in general to the Act as being unconstitutional without illustrating which articles are unconstitutional and how they are so. Furthermore, when a petitioner raises a query about the Final Decision’s application of this Court’s Interpretations and calls for additions or revisions to be made, such petition is to be granted review if this Court finds there are legitimate grounds (see J. Y. Interpretations Nos. 503, 741 and 742). However, the Final Judgment in this case did not apply J.Y. Interpretation No. 400. The petitioners may not ask for it to be added to or revised. Although the petitioners also ask that this Court to review the Disputed Explanation, this Explanation is still not an object for constitutional interpretation, as it directly limits the rights or increases the burdens on the specific items and is an administrative disposition in nature. These three parts do not conform to Article 5, Paragraph 1, Subparagraph 2 of the Constitutional Court Procedure Act and shall be dismissed in accordance with Paragraph 3 of the same Article. It is also noted here.
      
    • ______________________
      
    • *Translated by Edmund RYDEN SJ
      
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