重要實務
【高雄-帝謙法律事務所/土地重要實務(48)】平均地權條例以所有人之徵收價定額補償承租人規定合憲。
2014.4.17 高雄律師-楊岡儒律師
發文單位：司法院
解釋字號：釋字第579號
解釋日期：民國93年6月25日
解釋爭點：平均地權條例以所有人之徵收價定額補償承租人規定違憲？
資料來源：
司法院公報 第 46 卷 7 期 9-34 頁
月旦法學雜誌 第 111 期 246 頁
法令月刊 第 55 卷 7 期 94-95 頁
總統府公報 第 6588 號 14-64 頁
法務部公報 第 333 期 47-75 頁
相關法條：
中華民國憲法 第 15 條 ( 36.01.01 )
土地法 第 221 條 ( 90.10.31 )
土地法施行法 第 59 條 ( 91.12.11 )
耕地三七五減租條例 第 16、17、19、2、25 條 ( 91.05.15 )
平均地權條例 第 10、11、42 條 ( 93.01.14 )
土地徵收條例 第 30、35 條 ( 91.12.11 )
獎勵投資條例 第 38 條 ( 54.01.04 )
獎勵投資條例 第 54 條 ( 59.12.30 )
獎勵投資條例 第 65 條 ( 80.01.30 )
解釋文：
人民之財產權應予保障，憲法第十五條定有明文。國家因公用或其他公益目的之必要，得依法徵收人民之財產，對被徵收財產之權利人而言，係為公共利益所受之特別 犧牲，國家應給予合理之補償，且補償與損失必須相當。國家依法徵收土地時，對該土地之所有權人及該土地之其他財產權人均應予以合理補償，惟其補償方式，立法機關有一定之自由形成空間。
耕地承租人之租賃權係憲法上保障之財產權，於耕地因徵收而消滅時，亦應予補償。且耕地租賃權因物權化之結果，已形同耕地之負擔。平均地權條例第十一條第一項 規定，依法徵收之土地為出租耕地時，應由土地所有權人以所得之補償地價，扣除土地增值稅後餘額之三分之一，補償耕地承租人；第二項規定，前項補償承租人之地價，應由主管機關於發放補償或依法提存時，代為扣交，係出租之耕地因公用徵收時，立法機關依憲法保障財產權及保護農民之意旨，審酌耕地所有權之現存價值 及耕地租賃權之價值，採用代位總計各別分算代償之方法，將出租耕地上負擔之租賃權價值代為扣交耕地承租人，以為補償，其於土地所有權人財產權之保障，尚不 生侵害問題。惟近年來社會經濟發展、產業結構顯有變遷，為因應農地使用政策，上開為保護農民生活而以耕地租賃權為出租耕地上負擔並據以推估其價值之規定，應儘速檢討修正，以符憲法意旨，併予指明。
理由書：
人民之財產權應予保障，憲法第十五條定有明文。國家因公用或其他公益目的之必要，得依法徵收人民之財產，對被徵收財產之權利人而言，係為公共利益所受之特別犧牲，國家應給予合理之補償，且補償與損失必須相當。國家依法徵收土地時，對該土地之所有權人及該土地之其他財產權人就因徵收被剝奪之所有權及其他財產權，均應予以合理補償，惟其補償方式，立法機關有一定之自由形成空間。
耕地承租人之租賃權，係對他人所有耕地耕作、收益之權利，屬憲法上保障之財產權，於耕地被徵收時隨同所有權而消滅，乃耕地承租人為公共利益而受之財產權特別犧牲，國家亦應予耕地承租人合理補償。又耕地地租租額，不得超過主要作物正產品全年收穫總量千分之三百七十五；耕地租約在租佃期限未屆滿前或屆滿時，非有法定情形，出租人不得終止租約或收回自耕；且出租人於耕地租期屆滿前，縱將其所有權讓與第三人，其租佃契約對於受讓人仍繼續有效，受讓人應會同原承租人申請為租約變更之登記（耕地三七五減租條例第二條第一項前段、第十六條、第十七條第一項、第十九條第一項、第二項、第二十五條參照），耕地租賃權因而物權化之結果，已形同耕地之負擔。耕地被徵收時，原則上按照徵收當期之公告土地現值代位計算（參照平均地權條例第十條，並參考中華民國八十九年二月二日公布施行之土地徵收條例第三十條），故無論出租耕地或非出租耕地，均以相同之基準核算補償地價，是出租耕地之補償地價，實質上包括耕地所有權之現存價值及該耕地上 負擔之租賃權價值。
四十九年九月十日公布施行之獎勵投資條例（已廢止）第二十八條第一項及第二項規定：「編為工業用地區域內之出租耕地，出租人如變更作工業使用時，不論為自 用、出賣或出租得就變更使用部份終止租約。」「出租人依前項終止租約時，除應補償承租人為改良土地所支付之費用，及尚未收穫之農作改良物外，並應給與該土 地地價三分之一數額之損失補償。」其立法理由為：「……（２）耕地終止租約，承租人喪失耕作之土地，對承租人而言，亦有莫大之損失，現行民間終止租約之習 慣，亦由出租人給予承租人地價三分之一之權利金，故有本條第二項之規定」。該條規定於五十四年一月四日修正，改列為第三十八條，遞於五十九年十二月三十日 修正列為第五十四條規定，並因前開規定出租人終止租約應給承租人地價三分之一之補償，未考慮出租人是否須繳納增值稅，如增值稅過多，地主實得可能較承租人為少，頗不合理，爰修正其第二項為：「前項終止租約，除補償承租人為改良土地所支付之費用及尚未收穫之農作改良物外，並應以出售地價扣除繳納土地增值稅後 餘額之三分之一，補償原耕地承租人。」六十六年二月二日修正「實施都市平均地權條例」為「平均地權條例」前，對於徵收出租耕地之佃農補償問題，缺乏明確規定。政府每於實施公共建設而徵收私有出租耕地時，均發生如何給予佃農補償問題。故前開平均地權條例修正時比照獎勵投資條例第五十四條之規定，乃增訂第十一 條第一項規定：「依法徵收之土地為出租耕地時，除由政府補償承租人為改良土地所支付之費用，及尚未收穫之農作改良物外，並應由土地所有權人，以所得之補償地價扣除土地增值稅後餘額之三分之一，補償耕地承租人。」第二項規定：「前項補償承租人之地價，應由主管機關於發放補償或依法提存時，代為扣交。」係衡酌耕地所有權人與承租人間之權義關係及交易習慣，推估出租耕地上負擔之租賃權價值，為出租耕地補償地價扣除土地增值稅後餘額之三分之一；並以土地所有權人為核發補償地價之受領人，但由主管機關於發放補償或依法提存時，將出租耕地上負擔之租賃權價值代為扣交耕地承租人，以為補償，旨在闡明上開法律規定之地價補償，採用代位總計各別分算代償之方法，即土地應補償之地價，原則上以徵收當期之公告土地現值代位計算，再由主管機關在補償地價之範圍內，按其他各權利負擔，分別估定其價值，代土地所有權人發給其他權利人，再以餘款交付被徵收土地所有權人，以為補償（參照平均地權條例第十條、土地法第二百二十一條、土地法施行法第五十九條，並參考土地徵收條例第三十五條）。是前揭平均地權條例第十一條之規定，係就徵收耕地補償地價之核發程序與分配額所為之規定，符合憲法保 障財產權、保護農民之意旨及補償與損失相當之原則，並未逾越立法機關就徵收補償方式自由形成之範圍，於土地所有權人財產權之保障，尚不生侵害問題。惟近年來社會經濟發展、產業結構顯有變遷，為因應農地使用政策，上開為保護農民生活而以耕地租賃權為出租耕地上負擔並據以推估其價值之規定，應儘速檢討修正，以符憲法意旨，併予指明。
另司法院大法官審理案件法第五條第一項第二款規定，人民、法人或政黨於其憲法上所保障之權利，遭受不法侵害，經依法定程序提起訴訟，對於確定終局裁判所適用 之法律或命令發生有牴觸憲法之疑義者，得聲請解釋憲法。是確定終局裁判本身，或確定終局裁判適用法律、命令所表示之見解是否有牴觸憲法之疑義，不在人民得聲請解釋憲法之範圍。本件聲請人指稱系爭確定終局判決適用平均地權條例第四十二條第一項規定之見解，違背該法條之立法本旨，有牴觸憲法疑義，並聲請宣告該判決違憲無效部分，揆諸前開說明，核與司法院大法官審理案件法第五條第一項第二款規定不合，依同條第三項規定，應不受理。
J. Y. Interpretation No. 579
Date：2004.6.25
Issue：In the case of expropriation of leasehold farmland by the government, the law grants the lessee compensation equal to one-third of the amount of the compensation due to the landowner. Is Article 11 of the Statute for the Equalization of Land Rights constitutional in authorizing the government to withhold compulsorily one-third of the compensation due to the landowner and pay the sum so withheld to the lessee of the farmland expropriated?
Holding：
That the property right of the people shall be protected is clearly prescribed by Article 15 of the Constitution. The state may, however, expropriate in accordance with law a private property for public use or for other public interest wherever necessary. To the holder of the right to the property so expropriated, the state must give reasonable compensation and the amount of such compensation must
be commensurate with the special sacrifice thus made for public interest; therefore, the state must compensate him/her for the reasonable loss he/she has suffered. When the state legally exercises its power of eminent domain over land, it must give reasonable compensation to the owner of the land and the holders of other rights to the land, although the manner of compensation is to be established by the Legislature within the specific scope of its discretion.
The right of the lessee of farmland is a property right protected by the Constitution. Compensation must likewise be given where farmland ceases to be such as a result of expropriation. The right of the lessee of farmland, with the characteristics of a right in rem, has become something like an encumbrance on the land. The Statute for the Equalization of Land Rights provides in Article 11, Paragraph 1, that if the land expropriated is a leasehold farmland, the landowner shall give the lessee compensation equal to one-third of the remaining amount of the compensation for the land price received by the landowner after deducting therefrom the land value increment tax, and in Paragraph 2 thereof that the relevant authority shall withhold and pay to the lessee the compensation payable to him/her under Paragraph 1 when making payment to the landowner or making deposit in court as compensation for the land price. This is a device of payment by subrogation adopted by the Legislature for the purpose of protecting the property right and the interest of farmers as contemplated by the Constitution, whereby, in the case of the leasehold land expropriated being a farmland, the current value of the ownership to the land and the value of the lease of the land are taken into account and separately calculated and then summed up for the purpose of paying the lessee by subrogation compensation through withholding the worth of the lease with which the leasehold farmland is burdened. It constitutes no detriment to the protection of the property right of the owner of the land. Nevertheless, the social and economic developments in recent years have obviously resulted in changes to the structure of industries, and to adapt to the government policy on the use of farmland, the abovementioned provisions for assessment of the value of the lease of farmland as a burden on such leasehold land for the purpose of protecting the livelihood of farmers must be reviewed and revised as early as possible to the extent consistent with the purpose of the Constitution.
Reasoning：
That the property right of the people shall be protected is clearly prescribed by Article 15 of the Constitution. The state may, however, expropriate in accordance with law a private property for public use or for other public interest wherever necessary. To the holder of the right to the property so expropriated, who has thus made special sacrifice for the public interest, the state must give reasonable compensation, and the amount of such compensation must be commensurate to the loss he/she has suffered. When the state legally exercises its power of eminent domain over land, it must give reasonable compensation to the owner of the land and the holders of other rights to the land, although the manner of compensation is subject to deliberation to be made by the Legislature within the specific scope of its discretion.
The right of the lessee of farmland is a right to farm the land owned by another person and to yield proceeds therefrom, and is a property right protected by the Constitution. When this right is terminated along with the extinction of the ownership to the farmland as a result of expropriation, it means that the lessee has thus made a special sacrifice of his/her property right for the public interest, for which the state must give the lessee reasonable compensation. Moreover, the rental for farmland must not exceed 37.5 percent of the total annual yield of the principal product of the main crop; the lessor of farmland may not terminate the lease created on such land or take the land back for self-tilling before expiration of the term of the lease or tien 1without a statutory reason; a contract of lease or tien shall remain in force with respect to the transferee in case the lessor transfers to a third person his/her ownership to the land before expiration of the lease created on such farmland, and the transferee shall apply jointly with the original lessee for recordation of alteration to the contract (See the Statute for the Reduction of Farmland Rent to 37.5 Percent, Art. 2, Par. 1, First Sentence; Art. 16, Art. 17, Par. 1; Art. 19, Pars. 1 and 2; and Art. 25). Consequently, the right of the lessee of a farmland has become a right in rem and thus something like an encumbrance on farmland. In the case of expropriation of farmland, the compensation is computed in principle by subrogation on the basis of the declared current value of the land prevailing in the period during which the land is expropriated (See the Statute for the Equalization of Land Rights, Art. 10; also see the Statute for the Condemnation of Land promulgated on February 2, 2000, Art. 30). Thus, the compensation for the value of all farmlands is computed and paid on the same basis regardless of whether or not the land is leasehold, and the compensation for the land value of leasehold farmland includes in reality the current value of the ownership to the farmland and the leasehold value with which the land is burdened.
The Statute for the Encouragement of Investments promulgated on September 10, 1960, (now repealed) provided in Article 28, Paragraphs 1 and 2, respectively, that “where a leasehold farmland within an area designated as industrial land is converted by the lessor into land for industrial use, the lessor may terminate the lease in respect of that part of the land as may be converted for such purpose, irrespective of whether the land is to be so used by the owner himself/herself or to be sold or leased for such purpose” and that “where the lessor terminates the lease under the preceding paragraph, he/she shall pay the lessee a compensation equal to one-third of the price of such land, in addition to the cost of land improvement which the lessee may have made and any agricultural crops which the lessee may not yet have harvested.” One of the stated legislative purposes for this Article was that: “….(2) The case of termination of the lease of farmland, resulting in loss on the part of the lessee of the use of the land which he/she has been cultivating, constitutes a tremendous loss for the lessee. Moreover, the prevalent social custom calls for payment by the lessor to the lessee of an entitlement in an amount equal to one-third of the value of the land upon termination of the lease. This is the reason for which Paragraph 2 of this Article is so designed.” This Article was amended and renumbered Article 38 on January 4, 1965, and was again amended and renumbered Article 54 on December 30, 1970. As the provision of Paragraph 2 of said Article, in requiring payment by the lessor to the lessee of a compensation equal to one-third of the value of the land, failed to take into account the land value increment tax the lessor might have to pay and furthermore, if the sum of increment tax payable by the lessor was exceedingly high, such a provision would become unreasonable as the compensation to the lessor could be less than what the lessee was entitled to, it was amended to read: “Where the lessor terminates the lease under the preceding paragraph, he/she shall pay the lessee of the farmland a compensation equal to one-third of the remaining amount of the selling price of such land after paying the land value increment tax, in addition to the cost of land improvement which the lessee may have made and any agricultural crops which the lessee may not yet have harvested.” Before the Statute for the Equalization of Urban Land Rights was superseded on February 2, 1977, by the Statute for the Equalization of Land Rights, there was no clear rule with respect to compensation for tenants of leasehold farmlands expropriated by the government. As a result, when a private leasehold farmland was expropriated by the government for the construction of public works, it often gave rise to the problem of how to compensate the tenant farmers. Therefore, when the Statute for the Equalization of Land Rights was undergoing revision, the new Article 11 was added to it by analogy to Article 54 of the Statute for the Encouragement of Investments to set out in Paragraph 1 thereof that “where the land expropriated in accordance with law is a leasehold farmland, the landowner shall pay the lessee of the farmland a compensation equal to one-third of the remaining amount of the land price received by him/her as a compensation after deducting therefrom the land value increment tax, and in addition thereto, the lessee shall be entitled to payment by the government of the cost of land improvement which the lessee may have made and any agricultural crops which the lessee may not yet have harvested” and in Paragraph 2 thereof that “the compensation to which the lessee is entitled under the preceding paragraph shall be withheld by the relevant authority when compensation to the landowner is paid or deposited in court, and shall be paid to the lessee by such authority.” By taking into consideration the jural relations between the owner and the lessee of the farmland and the business practices, this Article is meant to assess the value of the right to the lease created on the farmland at one-third of the remaining amount of the land price received by the land owner as a compensation after deducting therefrom the land value increment tax and to identify the landowner to be the receiver of the payment of such land price compensation, subject to withholding by the relevant authority when compensation to the landowner is paid or deposited in court, for payment to the lessee, an amount equal to the value of the right to the lease created on the farmland as a compensation for the lessee. The purpose of the Article is to set out that the land price compensation prescribed by the above law shall be computed in the manner of separate and individual assessment and paid by subrogation. In other words, the relevant authority shall by subrogation compute the land price compensation payable for the land based on the current value of the expropriated land as declared by the government; assess the value of each and every right with which the land is burdened, within the range of the compensation for the land value; make payments to the respective holders of such rights for and behalf of the landowner; and then pay the remaining amount to the owner of the land expropriated as his/her compensation (See the Statute for the Equalization of Land Rights, Art. 10; the Land Law, Art. 221; and the Enforcement Law of the Land Law, Art. 59; also see the Statute on Eminent Domain, Art. 35). It follows that Article 11 of the Statute for the Equalization of Land Rights quoted above is designed to regulate the procedure with respect to payment of land price compensation in the case of expropriation of farmland and the amounts to be distributed, and is thus consistent with the purpose of the Constitution in affording protection of the property right of the farmers as well as of the constitutional principle of compensation commensurate with the amount of loss. It does not go beyond the scope of compensation established by the Legislature at its discretion, and results in no encroachment upon the protection of the property right of landowners. It must be pointed out, however, that the social and economic developments in recent years have obviously resulted in changes to the structure of industries, and to adapt to the government policy on the use of farmland, the abovementioned provisions for assessment of the value of the lease of farmland as a burden on such leasehold land for the purpose of protecting the livelihood of farmers must be reviewed and revised as early as possible to the extent consistent with the purpose of the Constitution.
Furthermore, under the Law of the Procedure for Interpretations by the Grand Justices, Article 5, Paragraph 1, Subparagraph 2, where an individual, body corporate or political party, upon the institution of a litigation in accordance with legal procedure by reason of unlawful infringement of his/her or its constitutional right, has questions about whether the law or order applied by the court in its irrevocable final adjudication is contrary to the Constitution, he/she or it may file a petition for interpretation of the Constitution. Hence, whether or not an irrevocable final adjudication per se or the opinion of the court when applying a law or order in its irrevocable final adjudication is constitutional does not come within the scope in which the people may petition for constitutional interpretation. In the case before us, the Petitioner alleges that the opinion of the court on the provision of Article 42, Paragraph 1, of the Statute for the Equalization of Land Rights applied in its irrevocable final judgment at issue here has given rise to the question of being unconstitutional and petitions for pronouncement by this Court to invalidate said judgment. Based on our explanations given above, we have found that the petition does not meet the elements required by the Law of the Procedure for Interpretations by the Grand Justices, Article 5, Paragraph 1, Subparagraph 2, and must therefore be rejected under Subparagraph 3 of the same Article.
' Translated by Raymond T. Chu.
解釋字號：釋字第579號
解釋日期：民國93年6月25日
解釋爭點：平均地權條例以所有人之徵收價定額補償承租人規定違憲？
資料來源：
司法院公報 第 46 卷 7 期 9-34 頁
月旦法學雜誌 第 111 期 246 頁
法令月刊 第 55 卷 7 期 94-95 頁
總統府公報 第 6588 號 14-64 頁
法務部公報 第 333 期 47-75 頁
相關法條：
中華民國憲法 第 15 條 ( 36.01.01 )
土地法 第 221 條 ( 90.10.31 )
土地法施行法 第 59 條 ( 91.12.11 )
耕地三七五減租條例 第 16、17、19、2、25 條 ( 91.05.15 )
平均地權條例 第 10、11、42 條 ( 93.01.14 )
土地徵收條例 第 30、35 條 ( 91.12.11 )
獎勵投資條例 第 38 條 ( 54.01.04 )
獎勵投資條例 第 54 條 ( 59.12.30 )
獎勵投資條例 第 65 條 ( 80.01.30 )
解釋文：
人民之財產權應予保障，憲法第十五條定有明文。國家因公用或其他公益目的之必要，得依法徵收人民之財產，對被徵收財產之權利人而言，係為公共利益所受之特別 犧牲，國家應給予合理之補償，且補償與損失必須相當。國家依法徵收土地時，對該土地之所有權人及該土地之其他財產權人均應予以合理補償，惟其補償方式，立法機關有一定之自由形成空間。
耕地承租人之租賃權係憲法上保障之財產權，於耕地因徵收而消滅時，亦應予補償。且耕地租賃權因物權化之結果，已形同耕地之負擔。平均地權條例第十一條第一項 規定，依法徵收之土地為出租耕地時，應由土地所有權人以所得之補償地價，扣除土地增值稅後餘額之三分之一，補償耕地承租人；第二項規定，前項補償承租人之地價，應由主管機關於發放補償或依法提存時，代為扣交，係出租之耕地因公用徵收時，立法機關依憲法保障財產權及保護農民之意旨，審酌耕地所有權之現存價值 及耕地租賃權之價值，採用代位總計各別分算代償之方法，將出租耕地上負擔之租賃權價值代為扣交耕地承租人，以為補償，其於土地所有權人財產權之保障，尚不 生侵害問題。惟近年來社會經濟發展、產業結構顯有變遷，為因應農地使用政策，上開為保護農民生活而以耕地租賃權為出租耕地上負擔並據以推估其價值之規定，應儘速檢討修正，以符憲法意旨，併予指明。
理由書：
人民之財產權應予保障，憲法第十五條定有明文。國家因公用或其他公益目的之必要，得依法徵收人民之財產，對被徵收財產之權利人而言，係為公共利益所受之特別犧牲，國家應給予合理之補償，且補償與損失必須相當。國家依法徵收土地時，對該土地之所有權人及該土地之其他財產權人就因徵收被剝奪之所有權及其他財產權，均應予以合理補償，惟其補償方式，立法機關有一定之自由形成空間。
耕地承租人之租賃權，係對他人所有耕地耕作、收益之權利，屬憲法上保障之財產權，於耕地被徵收時隨同所有權而消滅，乃耕地承租人為公共利益而受之財產權特別犧牲，國家亦應予耕地承租人合理補償。又耕地地租租額，不得超過主要作物正產品全年收穫總量千分之三百七十五；耕地租約在租佃期限未屆滿前或屆滿時，非有法定情形，出租人不得終止租約或收回自耕；且出租人於耕地租期屆滿前，縱將其所有權讓與第三人，其租佃契約對於受讓人仍繼續有效，受讓人應會同原承租人申請為租約變更之登記（耕地三七五減租條例第二條第一項前段、第十六條、第十七條第一項、第十九條第一項、第二項、第二十五條參照），耕地租賃權因而物權化之結果，已形同耕地之負擔。耕地被徵收時，原則上按照徵收當期之公告土地現值代位計算（參照平均地權條例第十條，並參考中華民國八十九年二月二日公布施行之土地徵收條例第三十條），故無論出租耕地或非出租耕地，均以相同之基準核算補償地價，是出租耕地之補償地價，實質上包括耕地所有權之現存價值及該耕地上 負擔之租賃權價值。
四十九年九月十日公布施行之獎勵投資條例（已廢止）第二十八條第一項及第二項規定：「編為工業用地區域內之出租耕地，出租人如變更作工業使用時，不論為自 用、出賣或出租得就變更使用部份終止租約。」「出租人依前項終止租約時，除應補償承租人為改良土地所支付之費用，及尚未收穫之農作改良物外，並應給與該土 地地價三分之一數額之損失補償。」其立法理由為：「……（２）耕地終止租約，承租人喪失耕作之土地，對承租人而言，亦有莫大之損失，現行民間終止租約之習 慣，亦由出租人給予承租人地價三分之一之權利金，故有本條第二項之規定」。該條規定於五十四年一月四日修正，改列為第三十八條，遞於五十九年十二月三十日 修正列為第五十四條規定，並因前開規定出租人終止租約應給承租人地價三分之一之補償，未考慮出租人是否須繳納增值稅，如增值稅過多，地主實得可能較承租人為少，頗不合理，爰修正其第二項為：「前項終止租約，除補償承租人為改良土地所支付之費用及尚未收穫之農作改良物外，並應以出售地價扣除繳納土地增值稅後 餘額之三分之一，補償原耕地承租人。」六十六年二月二日修正「實施都市平均地權條例」為「平均地權條例」前，對於徵收出租耕地之佃農補償問題，缺乏明確規定。政府每於實施公共建設而徵收私有出租耕地時，均發生如何給予佃農補償問題。故前開平均地權條例修正時比照獎勵投資條例第五十四條之規定，乃增訂第十一 條第一項規定：「依法徵收之土地為出租耕地時，除由政府補償承租人為改良土地所支付之費用，及尚未收穫之農作改良物外，並應由土地所有權人，以所得之補償地價扣除土地增值稅後餘額之三分之一，補償耕地承租人。」第二項規定：「前項補償承租人之地價，應由主管機關於發放補償或依法提存時，代為扣交。」係衡酌耕地所有權人與承租人間之權義關係及交易習慣，推估出租耕地上負擔之租賃權價值，為出租耕地補償地價扣除土地增值稅後餘額之三分之一；並以土地所有權人為核發補償地價之受領人，但由主管機關於發放補償或依法提存時，將出租耕地上負擔之租賃權價值代為扣交耕地承租人，以為補償，旨在闡明上開法律規定之地價補償，採用代位總計各別分算代償之方法，即土地應補償之地價，原則上以徵收當期之公告土地現值代位計算，再由主管機關在補償地價之範圍內，按其他各權利負擔，分別估定其價值，代土地所有權人發給其他權利人，再以餘款交付被徵收土地所有權人，以為補償（參照平均地權條例第十條、土地法第二百二十一條、土地法施行法第五十九條，並參考土地徵收條例第三十五條）。是前揭平均地權條例第十一條之規定，係就徵收耕地補償地價之核發程序與分配額所為之規定，符合憲法保 障財產權、保護農民之意旨及補償與損失相當之原則，並未逾越立法機關就徵收補償方式自由形成之範圍，於土地所有權人財產權之保障，尚不生侵害問題。惟近年來社會經濟發展、產業結構顯有變遷，為因應農地使用政策，上開為保護農民生活而以耕地租賃權為出租耕地上負擔並據以推估其價值之規定，應儘速檢討修正，以符憲法意旨，併予指明。
另司法院大法官審理案件法第五條第一項第二款規定，人民、法人或政黨於其憲法上所保障之權利，遭受不法侵害，經依法定程序提起訴訟，對於確定終局裁判所適用 之法律或命令發生有牴觸憲法之疑義者，得聲請解釋憲法。是確定終局裁判本身，或確定終局裁判適用法律、命令所表示之見解是否有牴觸憲法之疑義，不在人民得聲請解釋憲法之範圍。本件聲請人指稱系爭確定終局判決適用平均地權條例第四十二條第一項規定之見解，違背該法條之立法本旨，有牴觸憲法疑義，並聲請宣告該判決違憲無效部分，揆諸前開說明，核與司法院大法官審理案件法第五條第一項第二款規定不合，依同條第三項規定，應不受理。
J. Y. Interpretation No. 579
Date：2004.6.25
Issue：In the case of expropriation of leasehold farmland by the government, the law grants the lessee compensation equal to one-third of the amount of the compensation due to the landowner. Is Article 11 of the Statute for the Equalization of Land Rights constitutional in authorizing the government to withhold compulsorily one-third of the compensation due to the landowner and pay the sum so withheld to the lessee of the farmland expropriated?
Holding：
That the property right of the people shall be protected is clearly prescribed by Article 15 of the Constitution. The state may, however, expropriate in accordance with law a private property for public use or for other public interest wherever necessary. To the holder of the right to the property so expropriated, the state must give reasonable compensation and the amount of such compensation must
be commensurate with the special sacrifice thus made for public interest; therefore, the state must compensate him/her for the reasonable loss he/she has suffered. When the state legally exercises its power of eminent domain over land, it must give reasonable compensation to the owner of the land and the holders of other rights to the land, although the manner of compensation is to be established by the Legislature within the specific scope of its discretion.
The right of the lessee of farmland is a property right protected by the Constitution. Compensation must likewise be given where farmland ceases to be such as a result of expropriation. The right of the lessee of farmland, with the characteristics of a right in rem, has become something like an encumbrance on the land. The Statute for the Equalization of Land Rights provides in Article 11, Paragraph 1, that if the land expropriated is a leasehold farmland, the landowner shall give the lessee compensation equal to one-third of the remaining amount of the compensation for the land price received by the landowner after deducting therefrom the land value increment tax, and in Paragraph 2 thereof that the relevant authority shall withhold and pay to the lessee the compensation payable to him/her under Paragraph 1 when making payment to the landowner or making deposit in court as compensation for the land price. This is a device of payment by subrogation adopted by the Legislature for the purpose of protecting the property right and the interest of farmers as contemplated by the Constitution, whereby, in the case of the leasehold land expropriated being a farmland, the current value of the ownership to the land and the value of the lease of the land are taken into account and separately calculated and then summed up for the purpose of paying the lessee by subrogation compensation through withholding the worth of the lease with which the leasehold farmland is burdened. It constitutes no detriment to the protection of the property right of the owner of the land. Nevertheless, the social and economic developments in recent years have obviously resulted in changes to the structure of industries, and to adapt to the government policy on the use of farmland, the abovementioned provisions for assessment of the value of the lease of farmland as a burden on such leasehold land for the purpose of protecting the livelihood of farmers must be reviewed and revised as early as possible to the extent consistent with the purpose of the Constitution.
Reasoning：
That the property right of the people shall be protected is clearly prescribed by Article 15 of the Constitution. The state may, however, expropriate in accordance with law a private property for public use or for other public interest wherever necessary. To the holder of the right to the property so expropriated, who has thus made special sacrifice for the public interest, the state must give reasonable compensation, and the amount of such compensation must be commensurate to the loss he/she has suffered. When the state legally exercises its power of eminent domain over land, it must give reasonable compensation to the owner of the land and the holders of other rights to the land, although the manner of compensation is subject to deliberation to be made by the Legislature within the specific scope of its discretion.
The right of the lessee of farmland is a right to farm the land owned by another person and to yield proceeds therefrom, and is a property right protected by the Constitution. When this right is terminated along with the extinction of the ownership to the farmland as a result of expropriation, it means that the lessee has thus made a special sacrifice of his/her property right for the public interest, for which the state must give the lessee reasonable compensation. Moreover, the rental for farmland must not exceed 37.5 percent of the total annual yield of the principal product of the main crop; the lessor of farmland may not terminate the lease created on such land or take the land back for self-tilling before expiration of the term of the lease or tien 1without a statutory reason; a contract of lease or tien shall remain in force with respect to the transferee in case the lessor transfers to a third person his/her ownership to the land before expiration of the lease created on such farmland, and the transferee shall apply jointly with the original lessee for recordation of alteration to the contract (See the Statute for the Reduction of Farmland Rent to 37.5 Percent, Art. 2, Par. 1, First Sentence; Art. 16, Art. 17, Par. 1; Art. 19, Pars. 1 and 2; and Art. 25). Consequently, the right of the lessee of a farmland has become a right in rem and thus something like an encumbrance on farmland. In the case of expropriation of farmland, the compensation is computed in principle by subrogation on the basis of the declared current value of the land prevailing in the period during which the land is expropriated (See the Statute for the Equalization of Land Rights, Art. 10; also see the Statute for the Condemnation of Land promulgated on February 2, 2000, Art. 30). Thus, the compensation for the value of all farmlands is computed and paid on the same basis regardless of whether or not the land is leasehold, and the compensation for the land value of leasehold farmland includes in reality the current value of the ownership to the farmland and the leasehold value with which the land is burdened.
The Statute for the Encouragement of Investments promulgated on September 10, 1960, (now repealed) provided in Article 28, Paragraphs 1 and 2, respectively, that “where a leasehold farmland within an area designated as industrial land is converted by the lessor into land for industrial use, the lessor may terminate the lease in respect of that part of the land as may be converted for such purpose, irrespective of whether the land is to be so used by the owner himself/herself or to be sold or leased for such purpose” and that “where the lessor terminates the lease under the preceding paragraph, he/she shall pay the lessee a compensation equal to one-third of the price of such land, in addition to the cost of land improvement which the lessee may have made and any agricultural crops which the lessee may not yet have harvested.” One of the stated legislative purposes for this Article was that: “….(2) The case of termination of the lease of farmland, resulting in loss on the part of the lessee of the use of the land which he/she has been cultivating, constitutes a tremendous loss for the lessee. Moreover, the prevalent social custom calls for payment by the lessor to the lessee of an entitlement in an amount equal to one-third of the value of the land upon termination of the lease. This is the reason for which Paragraph 2 of this Article is so designed.” This Article was amended and renumbered Article 38 on January 4, 1965, and was again amended and renumbered Article 54 on December 30, 1970. As the provision of Paragraph 2 of said Article, in requiring payment by the lessor to the lessee of a compensation equal to one-third of the value of the land, failed to take into account the land value increment tax the lessor might have to pay and furthermore, if the sum of increment tax payable by the lessor was exceedingly high, such a provision would become unreasonable as the compensation to the lessor could be less than what the lessee was entitled to, it was amended to read: “Where the lessor terminates the lease under the preceding paragraph, he/she shall pay the lessee of the farmland a compensation equal to one-third of the remaining amount of the selling price of such land after paying the land value increment tax, in addition to the cost of land improvement which the lessee may have made and any agricultural crops which the lessee may not yet have harvested.” Before the Statute for the Equalization of Urban Land Rights was superseded on February 2, 1977, by the Statute for the Equalization of Land Rights, there was no clear rule with respect to compensation for tenants of leasehold farmlands expropriated by the government. As a result, when a private leasehold farmland was expropriated by the government for the construction of public works, it often gave rise to the problem of how to compensate the tenant farmers. Therefore, when the Statute for the Equalization of Land Rights was undergoing revision, the new Article 11 was added to it by analogy to Article 54 of the Statute for the Encouragement of Investments to set out in Paragraph 1 thereof that “where the land expropriated in accordance with law is a leasehold farmland, the landowner shall pay the lessee of the farmland a compensation equal to one-third of the remaining amount of the land price received by him/her as a compensation after deducting therefrom the land value increment tax, and in addition thereto, the lessee shall be entitled to payment by the government of the cost of land improvement which the lessee may have made and any agricultural crops which the lessee may not yet have harvested” and in Paragraph 2 thereof that “the compensation to which the lessee is entitled under the preceding paragraph shall be withheld by the relevant authority when compensation to the landowner is paid or deposited in court, and shall be paid to the lessee by such authority.” By taking into consideration the jural relations between the owner and the lessee of the farmland and the business practices, this Article is meant to assess the value of the right to the lease created on the farmland at one-third of the remaining amount of the land price received by the land owner as a compensation after deducting therefrom the land value increment tax and to identify the landowner to be the receiver of the payment of such land price compensation, subject to withholding by the relevant authority when compensation to the landowner is paid or deposited in court, for payment to the lessee, an amount equal to the value of the right to the lease created on the farmland as a compensation for the lessee. The purpose of the Article is to set out that the land price compensation prescribed by the above law shall be computed in the manner of separate and individual assessment and paid by subrogation. In other words, the relevant authority shall by subrogation compute the land price compensation payable for the land based on the current value of the expropriated land as declared by the government; assess the value of each and every right with which the land is burdened, within the range of the compensation for the land value; make payments to the respective holders of such rights for and behalf of the landowner; and then pay the remaining amount to the owner of the land expropriated as his/her compensation (See the Statute for the Equalization of Land Rights, Art. 10; the Land Law, Art. 221; and the Enforcement Law of the Land Law, Art. 59; also see the Statute on Eminent Domain, Art. 35). It follows that Article 11 of the Statute for the Equalization of Land Rights quoted above is designed to regulate the procedure with respect to payment of land price compensation in the case of expropriation of farmland and the amounts to be distributed, and is thus consistent with the purpose of the Constitution in affording protection of the property right of the farmers as well as of the constitutional principle of compensation commensurate with the amount of loss. It does not go beyond the scope of compensation established by the Legislature at its discretion, and results in no encroachment upon the protection of the property right of landowners. It must be pointed out, however, that the social and economic developments in recent years have obviously resulted in changes to the structure of industries, and to adapt to the government policy on the use of farmland, the abovementioned provisions for assessment of the value of the lease of farmland as a burden on such leasehold land for the purpose of protecting the livelihood of farmers must be reviewed and revised as early as possible to the extent consistent with the purpose of the Constitution.
Furthermore, under the Law of the Procedure for Interpretations by the Grand Justices, Article 5, Paragraph 1, Subparagraph 2, where an individual, body corporate or political party, upon the institution of a litigation in accordance with legal procedure by reason of unlawful infringement of his/her or its constitutional right, has questions about whether the law or order applied by the court in its irrevocable final adjudication is contrary to the Constitution, he/she or it may file a petition for interpretation of the Constitution. Hence, whether or not an irrevocable final adjudication per se or the opinion of the court when applying a law or order in its irrevocable final adjudication is constitutional does not come within the scope in which the people may petition for constitutional interpretation. In the case before us, the Petitioner alleges that the opinion of the court on the provision of Article 42, Paragraph 1, of the Statute for the Equalization of Land Rights applied in its irrevocable final judgment at issue here has given rise to the question of being unconstitutional and petitions for pronouncement by this Court to invalidate said judgment. Based on our explanations given above, we have found that the petition does not meet the elements required by the Law of the Procedure for Interpretations by the Grand Justices, Article 5, Paragraph 1, Subparagraph 2, and must therefore be rejected under Subparagraph 3 of the same Article.
' Translated by Raymond T. Chu.
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