Constitution Difficulty on “Special Sacrifice Damage Compensation System in Taiwan”, from the Perspective of Legal Policy making : A Case Study of Existing Road Compensation

• Main Authors: Shih-chang Lai, 賴世昌
• Other Authors: I-ming LiAo
• Format: Others
• Language: zh-TW
• Published: 2008
• Online Access: http://ndltd.ncl.edu.tw/handle/udqrbt

碩士 === 國立高雄大學 === 政治法律學系碩士班 === 96 === There is not yet a uniform legal statue of “damage compensation”, particularly “compensation for limitations on property right”. In practice, “legal principle for damage compensation” is adopted for existing roads for public use. For land owners, the limitation (damage) of property right has caused special sacrifice. Due to inadequate legal provision, the administrative court still insists the party involved cannot request for compensation based on Shih-Tze-Di#400, the interpretation from Justices in Constitutional Court, Judicial Yuan in the case that support of substantial legal statue is not existent. The administrative court rejects all administrative lawsuit of any compensation request for damage of existing roads. This viewpoint is different from the system in Western countries such as “quasi-expropriation damage” system in German and “control quasi-expropriation” system in the U.S., which have legal precedents for “compensation obligation” determined by judges who operate the judicial practice; thus, there is great argument in terms of theory and practice in Taiwan. In this paper, Chapter 3 is the literature review concerning theory and practice of “special sacrifice system” in German and the U.S. to investigate and systematically organize the issue. Why is the government not active in legislative action on the compensation issue of existing roads so that the special sacrifice of damage compensation due to limitation of property right in Taiwan may be legalized? Using an excuse of financial difficulty in “poverty counterargument”, the government has adopted “contingency consideration” in recent three years to obtain ownership of the existing roads through “bidding sales”. After all, what difficulty does the country face in dealing with the issue of existing roads? Chapter 4 analyzes the constitution difficulty on “special sacrifice compensation system for limitation of property rights in Taiwan”, using three-level hierarchy framework. Chapter 5 proposes “conclusion”: Due to financial difficulty, government agencies shall not connect the issue of “existing roads” with “expropriation compensation system”; and “suggestions”. In the case that government financial condition allows, payment based upon “equity compensation” shall be recommended for promoting relevant legislations of “special compensation system for the limitation on property right” (including a special legislation for existing roads compensation and a uniform legal statue for administrative damage compensation).