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大法官解釋表頭

(釋字第 232 號 )      友善列印PRINT  
Interpretation
J.Y.
Interpretation
NO.232 
Date 1988/11/4
Issue Does Article 25 of the Land Act apply in the case where the joining of publicly owned lands to those of landowners, who under Article 58 of the Equalization of Land Rights Act voluntarily compose a rezoning committee to deal with the rezoning of urban lands, is a disposal activity rendering alteration of right based on the landowner’s self-intent?
Holding
1
    The meaning of the statement that government-owned lands join those of landowners, who under Article 58 of the Equalization of Land Rights Act voluntarily compose a rezoning committee to deal with the rezoning of urban lands, and the meaning of the statement that the competent authority carrying out the rezoning of urban lands under Article 56 of the same Act and ratifying publicly owned land within rezoning areas rezones the land are substantially the same. The former is designed to fulfill the policy of equalization of urban land rights under the Constitution. Since there is no disposal activity rendering alteration of right based on the landowner’s self-intent involved, Article 25 of the Land Act does not apply here.
Reasoning
1
    According to the provision in Articles 56-58 of the Equalization of Land Rights Act, the rezoning of urban lands can be carried out by the competent authority at every level after reporting it to the competent authority at a higher level and receiving approval, or by the rezoning committee voluntarily composed of the landowners after the approval of the competent authority. The latter is designed to promote the use of lands, broaden the rezoning of urban lands, and encourage landowners to organize a rezoning committee voluntarily to carry out the rezoning of urban lands, and thus to help the competent authority to avoid spending too much time and expense to carry out the rezoning. Both of them may rezone the publicly owned lands, although in respect of the dealing process, a difference between them originally existed; however, in view of their substantial meanings, these two are both administrative acts made by the competent authority for the approval or disapproval of rezoning. Their purposes are to fulfill the policy of equalization of urban land rights under the Constitution, promote the use of lands, and expedite the process to obtain the lands reserved for public facilities. When rezoning is carried out in the latter situation, it is satisfactory that at least 1/2 of the total number of the owners of private lands within the rezoning area, whose lands occupy more than 1/2 of the total amount of private lands within the rezoning area, have expressed their consent and that the rezoning has been approved by the competent authority; when rezoning in the former situation, the competent authority shall hold a mediation where at least 1/2 of the total number of the owners of privately owned lands within the rezoning area, whose lands occupy more than 1/2 of the total amount of privately owned lands within the rezoning area, have expressed their opposition, to revise the rezoning proposal on consideration of the reasons for opposition, report it again for approval, and then publish and execute it, so that the landowners may no longer express any objections. The so-called “consent” or “opposition” is only a means employed by the owners of privately owned lands to urge the competent authority to exercise its duty or to reconsider and is not related to the publicly owned lands. In addition, in respect of the consequence of exchange and apportionment for urban-land rezoning, the former provision of Article 62 of the above Act states: “After rezoning the urban lands, the lands reapportioned and owned by the original owners shall be deemed their originally owned lands.” Regarding this kind of exchange and apportionment, the consequence is an effect provided by law; it is obvious that no disposal activity rendering alteration of right based on the landowner’s self-intent is involved. Article 25 of the Land Act states: “Without the consent of a representative institution located in its jurisdiction and the approval of the Executive Yuan, no provincial, municipal, or county government can dispose of the publicly owned lands under its control, or fix charges or lease more than 10 years on those lands.” The so-called “disposal” focuses on the activity rendering alteration of right based on the landowner’s self-intent, but does not include the joining of rezoning urban lands; the so-stated “approval of the Executive Yuan” is also different from the approval of the central or local competent authorities under the Act mentioned above. Therefore, Article 25 of the Land Act will not be applicable to the publicly owned lands that adjoin the urban-land rezoning in the latter situation mention above.

'Translated by Ching P. Shih
Opinion Chinese only
 

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