A Study on the Legal Issues of Privat Participation in afforestation

• Main Authors: Chang, Li Yun, 張瓈云
• Other Authors: Dung, Bau Tscheng
• Format: Others
• Language: zh-TW
• Online Access: http://ndltd.ncl.edu.tw/handle/rbgkwy

碩士 === 國立政治大學 === 法學院碩士在職專班 === 103 === The total area of the world’s forests is gradually decreasing. Climate change, environmental imbalances, and the extinction of species are all serious challenges humans need to overcome in order to preserve our living environment. For most nations, forests are an important natural resource as well as a good starting point for environmental protection. Forests provide a basis for national land conservation, ecological conservation, water conservation, and landscape maintenance. But the nature of forests as a public good allows for free riders — i.e., those who do not pay toward the maintenance of forests also benefit from their existence — and therefore there is seldom any voluntary private support. To reduce the state’s financial burden, and given the government’s limited financial and human resources, the government can integrate social resources and appoint private organizations to handle afforestation in a way that takes into account both public and private interests in order to improve overall effectiveness. One part of Taiwan’s afforestation effort is the Leased National Forestlands (LNF) policy, established in 1951, which allows portions of state-owned forest land to be leased to the public and accelerate afforestation through non-governmental means. The Afforestation Reward policy is another important way the government encourages private participation through incentivized payments. During the incentive period, persons responsible for afforestation take on the responsibilities and obligations for the reforested land for up to 20 years. If a transfer of title occurs due to sale, inheritance, or the rezoning of agricultural land, the responsible party faces the problem of how to continue their afforestation obligations; if a breach of duty occurs, incentive payments are recovered by the government in full. There are continued debates over the nature of incentive payments, submitting of required financial affidavits, annulment of administrative sanctions, inheritance and acceptance of rights and obligation under public law, and time limits regarding the claim for restitution. Currently, the entrusting of state and public lands to private entities for afforestation is a land lease contract but the afforestation process makes it more than a simple land lease. The afforestation of state-owned land is the responsibility of government agencies, but the government may not intervene in processes involving public authority being entrusted to private entities. A business consignment is established between the two parties (i.e., the government and private entity) and they enter into an administrative contract for the purpose of regulation. In practice, the majority opinion on the issuance of incentive payments agree that such payments should be subject to administrative disposition before payment in order to consolidate the results of how the law is applied in individual cases. The commitments within the affidavit which incentive recipients agree to are viewed as additional clauses to quasi-additional obligations. In order to reward a signee for undertaking afforestation on a piece of land, the government pays out annual afforestation incentive payments. The section on bilateral contracts in Article 137 of the Administrative Procedure Act deals specifically with the interpretation of incentive payments; the affidavit should be interpreted as an administrative contract and previous approval for afforestation applications are then viewed as administrative accreditation. Originally, the government encouraged afforestation by leasing land to the public and used subsidies and incentives to encourage private participation for afforestation. Due to the evolution of forest management policies, the traditional timber industry has gradually shifted toward the long-term goals of conservation and national land conservation. Currently, the market price of timber is low and there is public outcry against logging, and simple afforestation efforts appeal little to the public. But the public is paying increasing attention to the importance of recreation and the government has stopped restricting itself to simply leasing land and issuing incentive payments but has begun to utilize the recreational value of forests to attract private participation. In addition to meeting the needs of the people, this provides adequate incentives to attract private participation. Therefore, this paper seeks to provide an appropriate model for public-private cooperation and collaboration to achieve the mission of afforestation by balancing public interest and private benefit.