| Summary: | 碩士 === 國立中正大學 === 法律學研究所 === 99 === A historical monument is a cultural heritage frequently accessible to all people and its preservation is surely for the public good and is a plus for the succession of the endangered folklore and traditional artifacts from its own people’s ancestors to the future generations. Yet, the designation of a specific monument often accompanies with limitations to the property owners’ rights and thrusts the management and maintenance duties upon them. Hence, the designation of monuments often conflict with rights and interests of monument owners.
When the designation of monuments relates to the property rights protected by the constitution, the legalities of monuments designation must balance public welfare and private benefit to demonstrate due process of legitimacy. It is because of this reason that whether the designation procedure is justifiable is one of the most important indications our nation is governed by rule of law or not. On May 14th 1997, ROC central government delegated its right to designate monuments to local municipal (provincial) or county (city) governments, while Article 108 of the Constitution stipulates that monument designation and preservation are the authorities that the central government must legislate and enforce or legislate and delegate its power to local governments. This legislation should invite the question of whether the Cultural Heritage Preservation Act (CHPA) and the Constitution are consistent with each other. Furthermore, the Local Government Act (LGA) stipulates that the cultural heritage preservation affairs are self-government matters. However, whether or not this LGA law, if made, is consistent with CHPA or the Constitution or not, is another question. This paper intends to clarify, by exploring documents from various theories, administrative practicality and disputes among administrative departments, the disputes between property rights protection and the intrusive designation right, issues that involve Constitutional debates. It is the hope of this paper that through the practical operations and the legality development, the procedure to designate monuments could be duly justified.
The legalities of monuments designation was established when CHPA was enacted in 1982. The CHPA itself was thoroughly renovated on February 5th 2005, and so was the monument designating legalities. Because the designation of monument is a burden upon people’s property rights, the prosecution of this order must attune to the normative requirements of the Administrative Procedure Act (APA), or it may be considered as against the administrative procedure. Thus, this paper examines the justifications of the monument designating procedures by applying APA. This paper also introduces World Heritage Convention’s concepts concerning the enlistment of world heritages and the operational guideline, in the hope that our nation’s monument designation procedure could be engaged with current world heritage requirements, and be justifiable on legality and more thorough, professional and sustainable. The effect of the burden places limitations on people’s property rights and involves the Principle of Reliability Protection. Therefore, they must proceed with the discussion about the system of compensation for property loss, allowing the designation of monuments to embody democratic principles in an unbiased manner.
This paper explores the monument designating legalities from both Constitution and Administrative Law levels, studying academic documents, analyzing the adaptive changes of the concerned regulations and laws, and applying interpretation and annotation documents issued from central competent authority, appeal decisions from appeal bodies, court verdicts and Supreme Court rulings to analyze, study and, thus, developing various opinions of this paper upon the monument designating legalities. The opinions expressed in the paper, though, may not necessarily reflect the current mainstream point of views, it is the author’s belief that these opinions shall have their important values in the unfolding process of a better cultural heritage legal system, and make some useful contribution for the author is not only humbly knowledgeable about the current cultural heritage normative system but also actively participating the day-to-day administrative decision makings.
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