重要實務
【高雄-帝謙法律事務所/土地重要實務(26)】自耕能力證明申請及核發注意事項，以住所與農地之位置為認定能否自耕之準據合憲。
2014.4.01 高雄律師-楊岡儒律師
發文單位： 司法院
解釋字號： 釋字第 347 號
解釋日期： 民國 83 年 05 月 20 日
解釋爭點：
自耕能力證明申請及核發注意事項，以住所與農地之位置為認定能否自耕之準據，是否違憲？
相關法條：
憲法第5、23條
土地法第30條
耕地三七五減租條例第19條
自耕能力證明書之申請及核發注意事項第3點第4款、第6點第2款
解 釋 文：
內政部中華民國七十五年十一月二十五日及七十九年六月二十 二日修正發布之自耕能力證明書之申請及核發注意事項，係基於主管機關之權限，為執行土地法第三十條及耕地三七五減租條例第十九條等規定而訂定，其中關於申 請人住所與所承受農地或收回農地之位置，有所限制，係本於當時農地農有並自耕之土地政策，兼顧一般耕作工具之使用狀況而設，作為承辦機關辦理是項業務之依 據，與憲法尚無牴觸。至上開注意事項所定以住所或現耕農地與所承受之農地是否屬同一縣市或毗鄰鄉鎮，為認定能否自耕之準據，仍應斟酌農業發展政策之需要、 耕作方式及交通狀況之改進，隨時檢討修正，以免損害實際上有自耕能力農民之權益，併此說明。(註：依據司法院釋字第五八一號解釋，本解釋與該解釋相關部 分，應予變更。)
理 由 書：
私有農地之移轉，其承受人以能自耕者為限，又收回出租農 地，自耕之出租人須有自任耕作之能力，分別為土地法第三十條、耕地三七五減租條例第十九條所明定。內政部基於主管機關之權限，為執行上述法律及農業發展條 例等規定，訂有自耕能力證明書之申請及核發注意事項，其中關於申請人住所與所承受農地或收回農地之位置，有所限制，並於修訂前述注意事項時，屢經調整。中 華民國七十五年十一月二十五日修正發布之上開注意事項第三點第四款規定：申請人之住所與其承受農地非在同一或毗鄰鄉（鎮、市、區）者，視為不能自耕，不准 核發證明書，但交通路線距離在十五公里以內者，不在此限。此項規定嗣於七十九年六月二十二日修正為第六點第一項第二款，其內容為：承受農地與申請人之住所 應在同一縣市或不同縣市毗鄰鄉（鎮、市、區）範圍內者，始得核發證明書，均係本於當時農地農有並自耕之土地政策，兼顧一般耕作工具之使用狀況而設，作為承 辦機關辦理是項業務之依據，與憲法尚無牴觸。至上開注意事項所定以住所或現耕農地與所承受之農地是否在同一縣市或毗鄰鄉鎮，為認定能否自耕之準據，仍應斟 酌農業發展政策之需要、耕作方式及交通狀況之改進，隨時檢討修正，以免損害實際上有自耕能力農民之權益，併此說明。
J. Y. Interpretation No. 347
Date 1994.05.20
Issue
Is the provision of the Precautionary Matters on Submission of Application and Issuance of Self-Tilling Certificates, which determines the ability to engage in self-tilling based on the location of a tiller’s residence and farmland, unconstitutional?
Holding
The Precautionary Matters on Submission of Application and Issuance of Self-Tilling Certificates were amended and issued by the Ministry of the Interior on November 25, 1986 and June 22, 1990, respectively, based on its power as the competent authority to enforce the provisions of Article 30 of the Land Act and Article 19 of the Act Governing Reduction of Farm Rent to 37.5 Percent. The provisions contained therein, which impose certain restrictions on the applicant’s residence and the location of the farmland transferred to or recovered by such applicant, were set forth as guidelines so that the relevant authorities could carry out the measures contemplated thereby in light of the then current land policies of “farmland for self-tilling farmers” while also taking into account the general usage of farming tools. Such provisions are not found to be in conflict with the Constitution. In respect of those provisions contained in the said Precautionary Matters, which determine the ability of a tiller to engage in self-tilling based on whether the tiller’s residence or existing farmland and the transferred farmland are located within the same county/municipality or in an adjoining township/town, such other factors as the policy of agricultural development, the improvement of farming methods and traffic conditions, etc., should also be taken into consideration, and review and modification thereof be made from time to time so as not to adversely affect the rights and interests of those farmers who, in fact, have the ability to engage in self-tilling.
Reasoning
Holding
The transferee of any private farmland shall be limited to one who has the ability to engage in self-tilling; and the lessor of such farmland who takes back the land is required to have the ability to engage in self-tilling, which are clearly prescribed in Article 30 of the Land Act and Article 19 of the Act Governing Reduction of Farm Rent to 37.5 Percent, respectively. For the purpose of enforcing the applicable provisions of the aforesaid laws and the Agricultural Development Act, the Ministry of the Interior, based on its power as the competent authority, has prescribed the Precautionary Matters on Submission of Application and Issuance of Self-Tilling Certificates. The provisions contained therein have imposed certain restrictions on the applicant’s residence and the location of the farmland transferred to or recovered by such applicant, and modifications of such restrictions have been repeatedly made while amending the said Precautionary Matters. Section 3, Subparagraph 4, of the said Precautionary Matters as amended and issued on November 25, 1986, provided, “If the applicant’s residence and the farmland transferred to him are not located in the same or adjoining township(s) (town(s), city(-ies), or precinct(s)), he shall not be deemed to have the ability to engage in self-tilling and thus no certificate shall be issued, provided, however, that the traveling distance between the two locations is within fifteen kilometers. The said provision was later amended on June 22, 1990, as Section 6, Paragraph1, Subparagraph 2, thereof, which reads as follows: “No certificate shall be issued unless the residence of the applicant and the farmland transferred to him are located in the same county/municipality or, if not in the same county/municipality, in the adjoining townships (towns, cities, or precincts).” The foregoing provisions are set forth as guidelines so that the relevant authorities could carry out the measures contemplated thereby in light of the then current land policies of “farmland for self-tilling farmers” while also taking into account the general usage of farming tools. They are not found to be in conflict with the Constitution. In respect of those provisions contained in the said Precautionary Matters, which determine the ability of a tiller to engage in self-tilling based on whether the tiller’s residence or existing farmland and the transferred farmland are located within the same county/municipality or in an adjoining township/town, such other factors as the policy of agricultural development, the improvement of farming methods and traffic conditions, etc., should also be taken into consideration, and review and modification thereof be made from time to time so as not to adversely affect the rights and interests of those farmers who, in fact, have the ability to engage in self-tilling.
Translated by Vincent C. Kuan
解釋字號： 釋字第 347 號
解釋日期： 民國 83 年 05 月 20 日
解釋爭點：
自耕能力證明申請及核發注意事項，以住所與農地之位置為認定能否自耕之準據，是否違憲？
相關法條：
憲法第5、23條
土地法第30條
耕地三七五減租條例第19條
自耕能力證明書之申請及核發注意事項第3點第4款、第6點第2款
解 釋 文：
內政部中華民國七十五年十一月二十五日及七十九年六月二十 二日修正發布之自耕能力證明書之申請及核發注意事項，係基於主管機關之權限，為執行土地法第三十條及耕地三七五減租條例第十九條等規定而訂定，其中關於申 請人住所與所承受農地或收回農地之位置，有所限制，係本於當時農地農有並自耕之土地政策，兼顧一般耕作工具之使用狀況而設，作為承辦機關辦理是項業務之依 據，與憲法尚無牴觸。至上開注意事項所定以住所或現耕農地與所承受之農地是否屬同一縣市或毗鄰鄉鎮，為認定能否自耕之準據，仍應斟酌農業發展政策之需要、 耕作方式及交通狀況之改進，隨時檢討修正，以免損害實際上有自耕能力農民之權益，併此說明。(註：依據司法院釋字第五八一號解釋，本解釋與該解釋相關部 分，應予變更。)
理 由 書：
私有農地之移轉，其承受人以能自耕者為限，又收回出租農 地，自耕之出租人須有自任耕作之能力，分別為土地法第三十條、耕地三七五減租條例第十九條所明定。內政部基於主管機關之權限，為執行上述法律及農業發展條 例等規定，訂有自耕能力證明書之申請及核發注意事項，其中關於申請人住所與所承受農地或收回農地之位置，有所限制，並於修訂前述注意事項時，屢經調整。中 華民國七十五年十一月二十五日修正發布之上開注意事項第三點第四款規定：申請人之住所與其承受農地非在同一或毗鄰鄉（鎮、市、區）者，視為不能自耕，不准 核發證明書，但交通路線距離在十五公里以內者，不在此限。此項規定嗣於七十九年六月二十二日修正為第六點第一項第二款，其內容為：承受農地與申請人之住所 應在同一縣市或不同縣市毗鄰鄉（鎮、市、區）範圍內者，始得核發證明書，均係本於當時農地農有並自耕之土地政策，兼顧一般耕作工具之使用狀況而設，作為承 辦機關辦理是項業務之依據，與憲法尚無牴觸。至上開注意事項所定以住所或現耕農地與所承受之農地是否在同一縣市或毗鄰鄉鎮，為認定能否自耕之準據，仍應斟 酌農業發展政策之需要、耕作方式及交通狀況之改進，隨時檢討修正，以免損害實際上有自耕能力農民之權益，併此說明。
J. Y. Interpretation No. 347
Date 1994.05.20
Issue
Is the provision of the Precautionary Matters on Submission of Application and Issuance of Self-Tilling Certificates, which determines the ability to engage in self-tilling based on the location of a tiller’s residence and farmland, unconstitutional?
Holding
The Precautionary Matters on Submission of Application and Issuance of Self-Tilling Certificates were amended and issued by the Ministry of the Interior on November 25, 1986 and June 22, 1990, respectively, based on its power as the competent authority to enforce the provisions of Article 30 of the Land Act and Article 19 of the Act Governing Reduction of Farm Rent to 37.5 Percent. The provisions contained therein, which impose certain restrictions on the applicant’s residence and the location of the farmland transferred to or recovered by such applicant, were set forth as guidelines so that the relevant authorities could carry out the measures contemplated thereby in light of the then current land policies of “farmland for self-tilling farmers” while also taking into account the general usage of farming tools. Such provisions are not found to be in conflict with the Constitution. In respect of those provisions contained in the said Precautionary Matters, which determine the ability of a tiller to engage in self-tilling based on whether the tiller’s residence or existing farmland and the transferred farmland are located within the same county/municipality or in an adjoining township/town, such other factors as the policy of agricultural development, the improvement of farming methods and traffic conditions, etc., should also be taken into consideration, and review and modification thereof be made from time to time so as not to adversely affect the rights and interests of those farmers who, in fact, have the ability to engage in self-tilling.
Reasoning
Holding
The transferee of any private farmland shall be limited to one who has the ability to engage in self-tilling; and the lessor of such farmland who takes back the land is required to have the ability to engage in self-tilling, which are clearly prescribed in Article 30 of the Land Act and Article 19 of the Act Governing Reduction of Farm Rent to 37.5 Percent, respectively. For the purpose of enforcing the applicable provisions of the aforesaid laws and the Agricultural Development Act, the Ministry of the Interior, based on its power as the competent authority, has prescribed the Precautionary Matters on Submission of Application and Issuance of Self-Tilling Certificates. The provisions contained therein have imposed certain restrictions on the applicant’s residence and the location of the farmland transferred to or recovered by such applicant, and modifications of such restrictions have been repeatedly made while amending the said Precautionary Matters. Section 3, Subparagraph 4, of the said Precautionary Matters as amended and issued on November 25, 1986, provided, “If the applicant’s residence and the farmland transferred to him are not located in the same or adjoining township(s) (town(s), city(-ies), or precinct(s)), he shall not be deemed to have the ability to engage in self-tilling and thus no certificate shall be issued, provided, however, that the traveling distance between the two locations is within fifteen kilometers. The said provision was later amended on June 22, 1990, as Section 6, Paragraph1, Subparagraph 2, thereof, which reads as follows: “No certificate shall be issued unless the residence of the applicant and the farmland transferred to him are located in the same county/municipality or, if not in the same county/municipality, in the adjoining townships (towns, cities, or precincts).” The foregoing provisions are set forth as guidelines so that the relevant authorities could carry out the measures contemplated thereby in light of the then current land policies of “farmland for self-tilling farmers” while also taking into account the general usage of farming tools. They are not found to be in conflict with the Constitution. In respect of those provisions contained in the said Precautionary Matters, which determine the ability of a tiller to engage in self-tilling based on whether the tiller’s residence or existing farmland and the transferred farmland are located within the same county/municipality or in an adjoining township/town, such other factors as the policy of agricultural development, the improvement of farming methods and traffic conditions, etc., should also be taken into consideration, and review and modification thereof be made from time to time so as not to adversely affect the rights and interests of those farmers who, in fact, have the ability to engage in self-tilling.
Translated by Vincent C. Kuan
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