The Principle of Special Sacrifice Damage Compensation on the Legislation and Practice

• Main Authors: Yi-Mu Chuang, 莊乙木
• Other Authors: Fu-Ching Wang
• Format: Others
• Language: zh-TW
• Published: 2014
• Online Access: http://ndltd.ncl.edu.tw/handle/89025615190454533482

碩士 === 國立雲林科技大學 === 科技法律研究所 === 102 === This thesis focusing on the tort of the people property rights or non-property rights are damaged by the government for public authority in administrative law. This is called “special sacrifice” and the government has to pay the compensation. Relevant theories will arrange and analyze together on the actual application of the legislative, judicial and practices. For the results of “Separation of authorities” principle under the administration, the legislation and the judicial organ is acted in Taiwan, the actual application of the principle of special sacrifice damage compensation, since long- time has faced the problems, conflicts and difficult constructions, proposed personal opinions and suggestions. Expecting that this thesis proposed the analysis and the suggestions, when the people received special sacrifice because of the public welfare, the protection can be more respected by the government, the extent of property rights and non-property rights can also be promoted. Chapter 1 is the exordium of this thesis. Chapter 2 first makes an introduction on legal relationship between the people and the state and the state basic duty, and then discriminated the state responsibility system, in which discussed the state compensation responsibility of special sacrifice damage compensation, and proposed personal views between property rights and non-property rights. Chapter 3 discussed “Special Sacrifice Theory”, introduced it has the background and the history progression, which from public expropriation to public welfare expropriation, then derived quasi-expropriation damages and expropriation-effected potency damages from Germany, compared “Special Sacrifice Theory” with our state, when the people received special sacrifice because of the public welfare and want to request the state compensation, acknowledged by Grand Justices, while making that “has constitutional rank of legal principles”, analyzed the state should compensate this situation. Chapter 4 is about special sacrifice damage compensation in legislative and judicial practices, and aimed the question will be faced, proposed personal suggestions. Finally, Chapter 5 proposed summary and suggestions about this thesis. This thesis expected through the view of special sacrifice damage compensation, let administrative, legislative, judicial organ and the actual application outcome tend to be more complete and implement the spirit of the constitution projected people’s basic rights in our state.