A Study on Fundamental Theory of Property - the Relation of State and People

• Main Authors: CHIEN-FENG WEI, 魏千峰
• Other Authors: CHUEH-AN YEN
• Format: Others
• Language: zh-TW
• Published: 1999
• Online Access: http://ndltd.ncl.edu.tw/handle/94543803960198962214

博士 === 國立政治大學 === 法律學系 === 87 === The protection of property plays an important role in political and economic development of Taiwan. But in tradition there was no factor of right in our legal culture, and especially considered social interests when we adopted and learned from western legal systems. It can''t make people prevent from intervention of state power although Article 15 of Constitutional Law prescribes protection of property. For example, the interpretation of No.336 of Grand Justice upheld Article 50 of City Planning Law deleting deadline of public reservation. The said interpretation is a bad example. The goal of this dissertation is to establish fundamental theory of property. It is divided into three parts: what is property, why is property and how is property. Part I (what is property) analyzes definition of property. It also proceeds about characters、functions and flaws of property. Part Ⅱ(why is property) introduces the earliest modern theory of property (i.e., first occupancy theory)、labor theory、utilitarian property theory、personality development theory and Rawl''s distributive justice theory. Suum is the origin of first occupancy theory and labor theory. Utilitarianism argues that property is derived from social demand. Rawl''s distributive justice theory desires to establish the justice of using material about the same generation and the different generations. Only after reconstructing the said theories, property can deep input into our legal culture. Part Ⅲ (how is property) uses the said property theories to property protection of Constitutional Law and takings . For establishing the more protection system of property in Constitutional Law, it should employ natural right theory. And then it will produce the concept of negative right and limited government in Taiwan. It also can prevent from over - emphasising social obligations of individual and positive functions of state. In discussing takings, this dissertation analyzes the interpretation of No.236、No.336、No.400 and No.440 of Grand Justice. The interpretations of No.236 and No. 336 stress the importance of whole social interests, but it overlooks the individual right. The interpretation of No.400 constructs the concepts of limited state power and personality development. The latter is the turning point of property protection in our Constitutional Law. But oberserving contradiction of the said interpretations of Grand Justice, we still need to endeavor to establish the better system of property in our country.