The Petitioner, the Tzuyu Temple (a Matzu Temple), is the owner of the land located in Tucheng District, New Taipei City. On the said land stands a building owned by a third party, the Puan Temple, which was designated and registered as a historical building by the New Taipei City Government’s Order, New Taipei City Wen-Tzu-1051510226 of August 17, 2016 (hereinafter the “Original Disposition”). Contesting the Original Disposition, the Petitioner sought relief through administrative appeal and judicial review. The complaint was then first dismissed by the Taipei High Administrative Court Judgment 106-Su-Zi-24 (2017) and the appeal was finally rejected by the Supreme Administrative Court Judgment 109-Pan-Zi-70 (2020). The Petitioner contended that Article 9, Paragraph 1 of the Cultural Heritage Preservation Act (hereinafter “CHPA”) applied in the final judgment, is unconstitutional to the extent that the provision stipulated that “[t]he competent authority shall respect the rights and interests of the owner of the on-site cultural heritage and provide him or her with expert opinion for consultation” (hereinafter “Disputed Provision No. 1”) does not require the consent of the landowner as a prerequisite for the designation and registration of a historical building in cases where the land is owned by a third and different party from the owner of the on-site cultural heritage. The Petitioner also contended that the Original Disposition has deprived her of the right to freely use the aforementioned land and to exercise rei vindicatio under Article 767 of the Civil Code against an unauthorized occupant. In addition, the Petitioner contended that Article 99, Paragraph 2 and Article 100, Paragraph 1 fail to provide the landowner with reasonable compensation for the loss resulting from the restriction on their property rights in cases where the land on which a historical building stands is owned by a third party, especially when compared to Article 41 of the CHPA. While Article 41 of the CHPA which grants transferrable development rights to owners of land on which designated monuments stand, it is contended that Article 99, Paragraph 2 -- "The land on which a private historical building... stands may be granted a reduction in land value tax... within the scope of 50%" -- and Article 100, Paragraph 1 – "Land on which a private... historical building... stands shall be exempt from estate tax if transferred through inheritance" (collectively hereinafter "Disputed Provision No. 2") -- respectively grant landowners of historical buildings a partial reduction in land value tax and an exemption from estate tax upon transfer by inheritance. On the grounds mentioned above, the petitioner contended that both the Disputed Provision No. 1 and Provision No. 2 contravene the right to property under Article 15 of the Constitution and lodge a petition with this Court for constitutional interpretation. The petition was granted as it satisfies the requirements of Article 5, Paragraph 1, Subparagraph 2 of the Constitutional Court Procedure Act (1993).
Also, Article 18, Paragraph 1 of the CHPA provides that “[h]istorical buildings … shall be reviewed, registered and publicly declared by the municipal or county (city) competent authority and shall be reported to the central competent authority for recordation” (hereinafter “Disputed Provision No. 3”). Notwithstanding not being impugned by the Petitioner under the terms of her constitutional petition, Disputed Provision No. 3 nonetheless constitutes an essential procedural provision for the registration of historical buildings and therefore pertains to Disputed Provision No. 1 in respect of the adjudication of the petition. Moreover, it was invoked as the direct legal basis in the Original Disposition, and applied in the final judgment by the Supreme Administrative Court. Accordingly, Disputed Provision No. 3 is of significant relevance to this petition and falls under the scope of this review. This Interpretation is hereby rendered for the following reasons:
Article 15 of the Constitution provides that the people’s right of property shall be protected. Its purpose is to ensure that individuals, by means of their property, may exercise their rights to freely use, receive profits from, and dispose of their property, and to be secure from infringements by public authorities or any third party, so as to enable individuals to achieve personal freedom, develop personality, and maintain human dignity (see J.Y. Interpretation Nos. 400, 709, and 732). The scope of the constitutional protection of property rights is not limited to cases where the State deprives individuals of their ownership to their property. Even if the State does not deprive individuals of their land ownership, in cases where it imposes restriction on the exercise of the right to use, receive profits from, or dispose of such land to the extent of exceeding the scope of social responsibility required of land owners and thereby forming a special sacrifice on the part of individual owners, the State shall provide landowners with reasonable compensation in order to consist with the purpose and objective of the protection of the right to property under Article 15 of the Constitution.
At the same time, pursuant to Article 166 of the Constitution, it is a fundamental national policy that the State shall protect ancient sites and articles of historical, cultural or artistic value. In order to preserve and reuse cultural heritage, enrich the citizens’ spiritual life, and promote cultural diversity, the CHPA was enacted to preserve and maintain tangible and intangible cultural heritage of historical, artistic, scientific, or other cultural value that have been designated or registered (see Article 1 of the CHPA). With respect to tangible cultural heritage, in addition to monuments, the CHPA also includes historical buildings relevant to the present dispute (see Article 3 of the CHPA). Accordingly, the purpose of Disputed Provision No. 1 and Provision No. 3, concerning the registration of historical buildings, is to serve a legitimate public interest. Given that a historical building cannot be detached from the land on which it stands, in cases where the land on which a historical building stands is owned by a third party, the third-party landowner shall, pursuant to the relevant provisions of the CHPA, undertake the social responsibility and restriction on the right to property that arise from the registration of historical building, such as the inability to freely use the land and to exercise rei vindicatio against the owner of the historical building under Article 767 of the Civil Code. The aforementioned restriction on the landowner’s property right is necessary for the purposes of enriching the citizens' spiritual life and promoting cultural diversity through the registration of historical buildings and is therefore not contingent on the landowner’s consent. Accordingly, regarding cases where the land on which a historical building stands is owned by a third party, the fact that Disputed Provision No. 1 and Provision No. 3 do not require the consent of the landowner as a prerequisite for the registration cannot be deemed to be in contradiction to the right to property protected by Article 15 of the Constitution.
Considering the landowner’s right to use, administer, and dispose of the land on which a third party-owned building and the ancillary facilities stand is restricted under the relevant provisions of the CHPA (see Article 34, Paragraph 1; Article 42; and Article 106, Paragraph 1, Subparagraph 7 of the CHPA) after the said building and ancillary facilities are registered as historical buildings, such restrictions exceed the scope of the social responsibility the landowner ought to endure and thus constitute a special burden of sacrifice on her right to property. It follows that the owner of the land on which the said registered historical buildings stand shall be entitled to reasonable compensation so as to consist with the purpose and objective of the protection of the right to property under Article 15 of the Constitution. As to whether such reasonable compensation is to take the form of monetary payment or of other appropriate means, lawmakers shall have discretion in legislation.
As regards Disputed Provision No. 2, Article 99, Paragraph 2 of the CHPA only provides for a reduction in land value tax within the scope of 50 percent for the land on which a historical building is situated. Furthermore, Article 100, Paragraph 1 of the CHPA grants an estate tax exemption for transfers resulting from inheritance. However, the said provisions, which may be regarded as the materialization of the ability-to-pay principle in taxation or may even be characterized as tax benefits, can hardly be deemed to constitute reasonable compensation.
Accordingly, Disputed Provision No. 1 and Provision No. 3 concerning the registration of a historical building, which do not require the consent of the landowner in cases where the land on which the registered historical building stands is owned by a third party, cannot be deemed to be in contradiction to the right to property protected by Article 15 of the Constitution. However, where the right of the owner of such land to use, receive profits from, and dispose of the land is restricted because the building and its ancillary facilities situated thereon are registered as historical buildings, such restrictions, by their nature, constitute a special sacrifice on the part of the individual for which the State shall provide reasonable compensation as it amounts to an exercise of public authority by the State according to law that causes a loss to the people's right to property beyond the scope of the social responsibility that he or she ought to endure. Disputed Provision No. 2 are incompatible with the right to property protected by Article 15 of the Constitution to the extent that it does not provide reasonable compensation by monetary payment or other appropriate means where Disputed Provision No. 1 and Provision No. 3 impose a special sacrifice on the landowner in the aforementioned circumstance. The authorities concerned shall amend the CHPA in accordance with the ruling of this Interpretation within two years from the date of the promulgation of this Interpretation.
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Translated by Hui-Wen Chen and Ming-Sung Kuo