重要實務
【高雄-帝謙法律事務所/土地重要實務(49)】耕地三七五減租條例約滿收回須補償承租人等規定違憲?
2014.4.22 高雄律師-楊岡儒律師
發文單位： 司法院
解釋字號： 釋字第 580 號
解釋日期： 民國 93 年 07 月 09 日
解釋爭點：
耕地三七五減租條例約滿收回須補償承租人等規定違憲?
資料來源：
司法周刊 第 1193 期
司法院公報 第 46 卷 8 期 1-70 頁
法令月刊 第 55 卷 8 期 97-101 頁
月旦法學雜誌 第 112 期 246-250 頁
總統府公報 第 6592 號 33-120 頁
守護憲法 60 年 第 104-106 頁
相關法條：
中華民國憲法 第 15、22、23、143、146、153 條 ( 36.01.01 )
耕地三七五減租條例 第 5、6、17、19 條 ( 91.05.15 )
中華民國憲法增修條文 第 10 條 ( 89.04.25 )
解 釋 文：
基於個人之人格發展自由，個人得自由決定其生活資源之使用、收益及處分，因而得自由與他人為生活資源之交換，是憲法於第十五條保障人民之財產權，於第二十二條保障人民之契約自由。惟因個人生活技能強弱有別，可能導致整體社會生活資源分配過度不均，為求資源之合理分配，國家自得於不違反憲法第二十三條比例原則之範圍內，以法律限制人民締約之自由，進而限制人民之財產權。
憲法第一百四十三條第四項扶植自耕農之農地使用政策，以及憲法第一百五十三條第一項改良農民生活之基本國策，均係為合理分配農業資源而制定。中華民國四十年六月七日制定公布之耕地三七五減租條例 (以下稱減租條例) ，旨在秉承上開憲法意旨，為三十八年已開始實施之三七五減租政策提供法律依據，並確保實施該政策所獲致之初步成果。其藉由限制地租、嚴格限制耕地出租人終止耕地租約及收回耕地之條件，重新建構耕地承租人與出租人之農業產業關係，俾合理分配農業資源並奠定國家經濟發展方向，立法目的尚屬正當。雖未設置保護出租人既有契約利益之過渡條款，惟因減租條例本在實現憲法規定國家對於土地之分配與整理暨扶植自耕農之意旨，且於條例制定之前，減租政策業已積極推行數年，出租人得先行於過渡時期熟悉減租制度，減租條例對出租人契約自由及財產權之限制，要非出租人所不能預期，衡諸特殊之歷史背景及合理分配農業資源之非常重大公共利益，尚未違背憲法上之信賴保護原則。
減租條例第五條前段關於租賃期限不得少於六年，以及同條例第六條第一項暨第十六條第一項關於締約方式與轉租禁止之規定，均為穩定租賃關係而設；同條例第十七條第一項第一款規定租賃期限內，承租人死亡無人繼承耕作之法定終止租約事由，並保留出租人收回耕地之彈性。上開規定皆有利於實現扶植自耕農及改善農民生活之基本國策，縱於出租人之契
約自由及財產權有所限制，衡諸立法目的，其手段仍屬必要而且適當，亦兼顧承租人與出租人雙方之利益，與憲法第二十三條比例原則、第二十二條契約自由、第十五條財產權及第七條平等權之保障並無違背。
減租條例第十九條第一項第一款之規定，為實現憲法第一百四十三條第四項扶植自耕農之意旨所必要，惟另依憲法第一百四十六條及憲法增修條文第十條第一項發展農業工業化及現代化之意旨，所謂出租人之自任耕作，不以人力親自實施耕作為限，為農業科技化及企業化經營之自行耕作或委託代耕者亦屬之。減租條例第十九條第一項第二款規定出租人於所有收益足以維持一家生活者不得收回自耕，使租約變相無限期延長，惟立法機關嗣於七十二年十二月二十三日增訂之第二項，規定為擴大家庭農場經營規模得收回與其自耕地同一或鄰近地段內之耕地自耕，已放寬對於出租人財產權之限制。同條項第三款規定，如出租人收回耕地，承租人將失其家庭生活依據者，亦不得收回耕地，係為貫徹憲法第一百五十三條第一項保護農民政策之必要手段；且如出租人亦不能維持其一家生活，尚得申請耕地租佃委員會調處，以兼顧出租人與承租人之實際需要。衡諸憲法第一百四十三條第四項扶植自耕農、第一百四十六條與憲法增修條文第十條第一項發展農業工業化及現代化，以及憲法第一百五十三條第一項改善農民生活之意旨，上開三款限制耕地出租人收回耕地之規定，對於耕地所有權之限制，尚屬必要，與憲法第二十三條比例原則及第十五條保障人民財產權規定之意旨要無不符。
七十二年十二月二十三日增訂之減租條例第十七條第二項第三款關於租約期限尚未屆滿而農地因土地編定或變更為非耕地時，應以土地公告現值扣除土地增值稅後餘額之三分之一補償承租人之規定，乃限於依土地法第八十三條所規定之使用期限前得繼續為從來之使用者，方有其適用。土地法所規定之繼續使用期限，係為保護土地使用人既有之法律地位而設之過渡條款，耕地出租人如欲於期前終止租約，減租條例第十七條第二項第三款即賦予補償承租人之義務，乃為平衡雙方權利義務關係，對出租人耕地所有權所為之限制，尚無悖於憲法第十五條保障財產權之本旨。惟不問情狀如何，補償額度一概為三分之一之規定，有關機關應衡酌憲法第二十二條保障契約自由之意旨及社會經濟條件之變遷等情事，儘速予以檢討修正。七十二年十二月二十三日增訂之減租條例第十九條第三項規定，耕地租約期滿時，出租人為擴大家庭農場經營規模、提升土地利用效率而收回耕地時，準用同條例第十七條第二項第三款之規定，應以終止租約當期土地公告現值扣除土地增值稅餘額後之三分之一補償承租人。惟契約期滿後，租賃關係既已消滅，如另行課予出租人補償承租人之義務，自屬增加耕地所有權人不必要之負擔，形同設置出租人收回耕地之障礙，與鼓勵擴大家庭農場經營規模，以促進農業現代化之立法目的顯有牴觸。況耕地租約期滿後，出租人仍須具備自耕能力，且於承租人不致失其家庭生活依據時，方得為擴大家庭農場經營規模而收回耕地。按承租人之家庭生活既非無依，竟復令出租人負擔承租人之生活照顧義務，要難認有正當理由。是上開規定準用同條例第十七條第二項第三款部分，以補償承租人作為收回耕地之附加條件，不當限制耕地出租人之財產權，難謂無悖於憲法第一百四十六條與憲法增修條文第十條第一項發展農業之意旨，且與憲法第二十三條比例原則及第十五條保障人民財產權之規定不符，應自本解釋公布日起，至遲於屆滿二年時，失其效力。
減租條例第二十條規定租約屆滿時，除法定收回耕地事由外，承租人如有續約意願，出租人即有續約義務，為出租人依法不得收回耕地時，保障承租人續約權利之規定，並未於不得收回耕地之諸種事由之外，另行增加耕地出租人不必要之負擔，與憲法第二十三條規定之比例原則及第十五條保障財產權之規定尚無不符。
理 由 書：
本件聲請案相關確定裁判（最高行政法院九十年度判字第一一八九號判決、最高法院九十一年度台上字第九○八號判決、最高法院九十年度台上字第二二三六號裁定、台灣高等法院台中分院八十九年度上字第一八○號判決、最高行政法院九十一年度判字第八七五號判決）所適用之法律，包括減租條例第五條前段、第六條第一項、第十六條第一項、第十七條第一項第一款與第二項第三款、第十九條第一項及第二十條等，依司法院大法官審理案件法第五條第一項第二款規定，得為解釋之客體；減租條例第十九條第三項於耕地出租人為擴大家庭農場經營規模而收回耕地時，應準用同條例第十七條第二項第三款補償耕地承租人之規定，與第十九條第一項第二款之適用有重要關聯，應一併納入解釋範圍，合先敘明。
基於個人之人格發展自由，個人得自由決定其生活資源之使用、收益及處分，因而得自由與他人為生活資源之交換。憲法第十五條保障人民之財產權，使財產所有人得依財產之存續狀態行使其自由使用、收益及處分之權能，以確保人民所賴以維繫個人生存及自由發展其人格之生活資源；憲法第二十二條保障人民之契約自由，使契約當事人得自由決定其締約方式及締約內容，以確保與他人交換生活資源之自由。惟因個人生活技能強弱有別，可能導致整體社會生活資源分配過度不均，為求資源之合理分配，國家自得於不違反憲法第二十三條比例原則之範圍內，以法律限制人民締約之自由，進而限制人民之財產權。
憲法第一百四十三條第四項規定，國家對於土地之分配與整理，應以扶植自耕農及自行使用土地人為原則，並規定其適當經營之面積；憲法第一百五十三條第一項規定，國家為改良農民生活，增進其生活技能，應制定保護農民之法律，實施保護農民之政策，均係為合理分配農業資源而設之規定。依據主管機關相關文獻之記載，推行耕地減租政策，係鑒於當時台灣經濟倚重農業生產，農業人口佔就業人口半數以上，大多數之農業生產者為雇農、佃農及半自耕農，農地資源集中於少數地主手中，而部分佃租偏高，租期並不固定，地主任意撤佃升租者有之，以致租權糾紛經常出現（參照台灣省政府地政處編印，台灣省地政統計年報第十五期，八十六年五月出版，頁三；內政部編印，台灣光復初期土地改革實錄專輯，八十一年六月出版，頁二八二以下）。政府乃於三十六年三月二十日以從字第一○○五○號訓令規定佃農應繳之耕地地租，依正產物千分之三百七十五計算，惟因當時之土地法未有明文規定，各級政府推行法令不力，上開訓令形同具文；三十八年四月十四日公布實施「臺灣省私有耕地租用辦法」，並陸續訂定「臺灣省私有耕地租用辦法施行細則」、「臺灣省辦理私有耕地租約登記注意事項」、「臺灣省推行三七五減租督導委員會組織規程」及「臺灣省各縣市推行三七五減租督導委員會組織規程」等法規，進行全省租約總檢查、糾正違約收租及違法撤佃事件、辦理換約及補訂租約，以貫徹三七五減租政策。因仍有地主以減租後收益降低，強迫撤佃，司法機關沿用土地法及相關法令無法解決訟爭，為確保推行三七五減租已獲得之初步成果，即於四十年六月七日制定公布耕地三七五減租條例，作為法律依據（參照立法院公報第二期及第三期合訂本，四十年九月三十日出版，頁四十以下）。減租條例為保障佃農權益，藉由限制地租、嚴格限制耕地出租人終止耕地租約及收回耕地之條件，重新建構耕地承租人與出租人之農業產業關係，俾合理分配農業資源並奠定國家經濟發展之方向，立法目的尚屬正當。雖未設置保護出租人既有契約利益之過渡條款，惟因減租條例本在實現憲法規定國家對於土地之分配與整理暨保護佃農之意旨，且於條例制定之前，減租政策業已積極推行數年，出租人得先行於過渡時期熟悉減租制度，減租條例對出租人契約自由及財產權之限制，要非出租人所不能預期，衡諸特殊之歷史背景及合理分配農業資源之非常重大公共利益，尚非憲法上之信賴保護原則所不許。
減租條例第五條前段規定最低之租賃期限，藉由防止耕地出租人任意收回土地，提高承租人改良土地與改進農業生產技術之意願，以增加農地之生產力，並培植承租人經營及取得土地之能力；同條例第六條第一項規定租約以書面定之，租佃雙方應會同申請登記，用以杜絕口頭約定所經常導致之租權糾紛；同條例第十六條第一項關於轉租禁止之規定，乃為進一步穩定租賃關係，使承租人履行耕作約定，避免耕地成為中間剝削之工具；同條例第十七條第一項第一款規定之法定終止租約事由，僅適用於租賃期限內，承租人死亡而無人繼承耕作之情形，如承租人之繼承人不能自任耕作，出租人自得收回耕地，已保留出租人收回自耕之彈性。上開規定皆有利於實現扶植自耕農及改善農民生活之基本國策，縱於出租人之契約自由及財產權有所限制，衡諸立法目的，其手段仍屬必要而且適當，亦兼顧承租人與出租人雙方之利益，與憲法第二十三條比例原則、第二十二條契約自由、第十五條財產權及第七條平等權之保障並無違背。
減租條例第十九條第一項第一款規定租約期滿，出租人如無自任耕作之能力，不得收回耕地，使有耕作能力之承租人，不致無地可耕，乃實現憲法第一百四十三條第四項扶植自耕農之必要手段；惟另依憲法第一百四十六條及憲法增修條文第十條第一項發展農業工業化及現代化之意旨，為因應全球化之農業競爭環境、獎勵農業科技及多元化新產業型態之發展，所謂出租人之自任耕作，不以人力親自實施耕作為限，為農業科技化及企業化經營之自行耕作或委託代耕者亦屬之。減租條例第十九條第一項第二款規定出租人於所有收益足以維持一家生活者不得收回自耕，使租約變相無限期延長，可能降低承租人成為自耕農之意願，而偏離憲法第一百四十三條第四項規定扶植自耕農之本旨。惟立法機關嗣於七十二年十二月二十三日增訂第二項，規定為擴大家庭農場經營規模，得收回與其自耕地同一或鄰近地段內之耕地自耕，放寬對於出租人財產權之限制，使耕地之出租不致形同剝奪耕地出租人之土地所有權。減租條例第十九條第一項第三款規定，如出租人收回耕地，承租人將失其家庭生活依據者，亦不得收回耕地，乃為保障耕地承租人之基本生活，以實現憲法第一百五十三條第一項規定改善農民生活之必要手段；且如出租人亦不能維持其一家生活，尚得依本條第四項規定，申請鄉（鎮、市、區）公所耕地租佃委員會調處之，以兼顧出租人與承租人之實際需要。衡諸憲法第一百四十三條第四項扶植自耕農、第一百四十六條與憲法增修條文第十條第一項發展農業工業化及現代化，以及憲法第一百五十三條第一項改善農民生活之意旨，上開三款限制耕地出租人收回耕地之規定，對於耕地所有權之限制，尚屬必要，與憲法第二十三條比例原則及第十五條保障人民財產權規定之意旨無違。至耕地出租人收回耕地後，是否得另行出租予他人，乃法律適用之問題。
另七十二年十二月二十三日增訂之減租條例第十七條第二項第三款關於租約期限尚未屆滿而農地因土地編定或變更為非耕地時，耕地出租人應以土地公告現值扣除土地增值稅後餘額之三分之一補償承租人之規定，乃限於依土地法第八十三條所規定之編定使用地於其所定使用期限前得繼續為從來之使用者，方有其適用。土地法所規定之繼續使用期限，係為保護土地使用人既有之法律地位而設之過渡條款，耕地租約既未屆滿，耕地於一定期限內，復尚得為從來之使用，如耕地出租人欲於期前終止租約，依減租條例第十七條第二項第三款之規定，即應承擔補償耕地承租人之義務，乃為彌補耕地承租人喪失耕地租賃權之損失，以平衡雙方權利義務關係而對出租人耕地所有權所為之合理限制，尚無悖於憲法第十五條保障財產權之本旨。惟不問情狀如何，補償額度一概為三分之一之規定，有關機關應衡酌憲法第二十二條保障契約自由之意旨及社會經濟條件之變遷等情事，儘速予以檢討修正。
七十二年十二月二十三日增訂之減租條例第十九條第三項規定，耕地租約期滿時，出租人為擴大家庭農場經營規模、提升土地利用效率而收回耕地時，準用同條例第十七條第二項第三款之規定，應以終止租約當期土地公告現值扣除土地增值稅餘額後之三分之一補償承租人。然契約期滿後，當事人之租賃關係當然消滅，猶另行課予出租人補償承租人之義務，乃增加耕地所有權人不必要之負擔，形同設置出租人收回耕地之障礙，與鼓勵出租人收回自耕、擴大家庭農場經營規模，以促進農業現代化之立法目的顯有牴觸。況耕地租約期滿後，出租人縱為擴大家庭農場經營規模，仍須具備自耕能力，且於承租人不致失其家庭生活依據時，方得收回耕地。
準此，承租人之家庭生活既非無依，竟復令出租人負擔承租人之生活照顧義務，難謂有正當理由。是上開規定準用同條例第十七條第二項第三款部分，以補償承租人作為收回耕地之附加條件，不當限制耕地出租人之財產權，與憲法第一百四十六條、憲法增修條文第十條第一項發展農業之意旨不符，並違背憲法第二十三條比例原則之規定及第十五條對人民財產權之保障，應自本解釋公布日起，至遲於屆滿二年時，失其效力。
減租條例第二十條規定租約屆滿時，除法定收回耕地事由外，承租人如有續約意願，出租人即有續約義務，對於承租人續約權利之保障，限於出租人依法不得收回耕地之情形，出租人依法既不得收回耕地，限制出租人之締約自由，而賦予續約義務，乃為避免租佃契約陷於不確定之狀態，並未於不得收回耕地之諸種事由之外，另行增加耕地出租人不必要之負擔，與憲法第二十三條規定之比例原則及第十五條保障財產權之規定尚無不符。
J. Y. Interpretation No. 580
Date 2004.7.9
Issue
Where the Statute for the Reduction of Farmland Rent to 37.5 Percent contains, inter alia, clauses that constrain the freedom of contract and property right of landlords by setting a limit on the farmland rent at 37.5%, specifying restrictive conditions on which the landlord may not terminate the lease, requiring that the landlord give the lessee certain compensation in case the lessee is deprived of subsistence for his/her family as a result of termination of the lease, are such clauses constitutional in light of the fundamental national policies as declared by the Constitution on reasonable distribution of land resources and improvement of the livelihood of farmers through the implementation of the government’s land reform program designed to assist tenant farmers and to promote the development and modernization of agriculture?
Holding
In light of the freedom of development of the individual personality, every person has the right to decide freely how to use, receive benefits from and dispose of the resources needed for their livelihood, and may thus freely exchange such resources with other persons. For this reason, the Constitution provides in Article 15 for the protection of the people’s property right and in Article 22 for the protection of the people’s freedom of contract. However, the skills required for living being varied in degree of competency from person to person, with the possibility of resulting in excessively disproportionate distribution of the overall resources of social life, the State may certainly impose restrictions on the freedom of contract and, furthermore, the property right of the people by enacting laws within the scope defined by the principle of proportionality under Article 23 of the Constitution for the purpose of reasonable distribution of resources.
The policy on the use of farmland through assistance to land-holding farmers as stated in the Constitution, Article 143, Paragraph 4, and the nation’s fundamental policy on the improvement of the livelihood of farmers as announced in Article 153, Paragraph 1, are formulated for the purpose of making reasonable distribution of agricultural resources. The Statute for the Reduction of Farmland Rent to 37.5 Percent (hereinafter the “Rent Reduction Statute”) promulgated on June 7, 1951, in pursuance of the purposes contemplated by the Constitution as mentioned above was enacted to provide a legal basis for the policy launched in 1949 on the reduction of farmland rent to 37.5 percent and to ensure that the initial outcome achieved by implementation of such policy could be maintained. To make reasonable distribution of agricultural resources and lay a foundation for development of the national economy, the Rent Reduction Statute rebuilds the agricultural industrial relationship between lessors and lessees of farmland by setting a limit on the rent and specifying strict restrictive conditions on termination of a farmland lease and on repossession of such land by the lessor and has thus a legitimate legislative purpose. While no interim clauses are incorporated into the Statute to protect the vested contractual interest of lessors, the restrictions imposed thereby on the lessor’s freedom of contract and property right are not beyond the expectation of lessors as the government policy to reduce farm rent had been actively in progress for several years before the Rent Reduction Statute was enacted, allowing lessors the opportunity to familiarize themselves with the rent reduction mechanism, and the very purpose of the Statute is to put into practice the constitutional provisions requiring the State to assist land-holding farmers in the distribution and readjustment of land. Hence the Statute, considering the special historical background and the distinct significance to the public interest attainable through reasonable distribution of agricultural resources, is not in conflict with the constitutional principle of reliance protection.
The provisions of the Rent Reduction Statute, Article 5, first sentence, requiring that the minimum duration of the lease must be no less than six years, and Article 6, Paragraph 1 and Article 16, Paragraph 1, setting out the manner of execution of lease agreements and the prohibition of sub-lease, are all intended to stabilize the lessor-lessee relationship; and the Statute specifies in Article 17, Paragraph 1, Subparagraph 1, the circumstances where the lease may be legally terminated upon the death of the lessee during the term of the lease, leaving no heir capable of continued cultivation of the land, and retains for the lessor the option to repossess the land. The foregoing provisions are all helpful in carrying out the nation’s fundamental policies to assist land-holding farmers and to improve the livelihood of farmers. While the freedom of contract and property right of lessors are subject to certain restraints, the approach is necessary and appropriate in light of the purpose of the legislation, and the interest of both lessors and lessees is likewise ensured. The provisions are thus consistent with the Constitution insofar as the principle of proportionality under Article 23, the safeguard of the freedom of contract under Article 22, the right to property under Article 15 and the equality right under Article 7 are concerned.
While the provision of Article 19, Paragraph 1, Subparagraph 1, of the Rent Reduction Statute is essential to achieving the objective to assist land-holding farmers as contemplated by Article 143, Paragraph 4, of the Constitution, the meaning of “self-tilling by the lessor” therein is not limited to the situation of personal cultivation by manual labor in light of the purpose of Article 146 of the Constitution and Article 10, Paragraph 1, of the Amendments to the Constitution relating to the industrialization and modernization of agriculture. Within the meaning is also included self-farming or contracting someone else to do the farming by way of agricultural technology and in the manner of a businesslike operation. Under the Rent Reduction Statute, Article 19, Paragraph 1, Subparagraph 2, the lessor has no right to repossess the land for his own cultivation if the total income of the lessor is sufficient to support his family. This provision has virtually made the lease renewable for an indefinite term of duration. However, in consequence of the amendment made by the Legislature on December 23, 1983, by adding to the article the second paragraph allowing the lessor to repossess for his own cultivation the farmland situated in the same sector as or in a sector adjacent to his self-cultivated land for the purpose of expanding the business of his family farm, the restraint on the property right of lessors is accordingly eased. Subparagraph 3 of the same article which prohibits the lessor from repossessing his land if the lessee will be deprived of the subsistence for his family is an essential measure for carrying out the policy to protect farmers as declared in Article 153, Paragraph 1, of the Constitution; and if the lessor is likewise devoid of the means to support his family he may request the farmland lease and tenancy committee to mediate, so that the actual needs of both the lessor and the lessee are ensured. In light of the policies to assist land-holding farmers under Article 143, Paragraph 4, of the Constitution, to promote the industrialization and modernization of agriculture under Article 146 of the Constitution and Article 10, Paragraph 1, of the Amendments to the Constitution, and to improve the livelihood of farmers under Article 153, Paragraph 1, of the Constitution, the provisions of the three subparagraphs cited above, which place constraint on ownership of farmland by setting forth restrictive conditions on which lessors of farmland may repossess the land, are found to be necessary and consistent with the principle of proportionality under Article 23 of the Constitution and the provision of Article 15 of the Constitution with respect to the protection of the property right of the people.
Article 17, Paragraph 2, Subparagraph 3, of the Rent Reduction Statute, as added thereto by amendment on December 23, 1983, whereby the lessor of a farmland that is classified as or changed into land for non-cultivation use before the expiration of the lease thereof shall give the lessee a compensation equal to one-third of the remaining amount of the government-declared current land value after deducting therefrom the amount of land value increment tax payable therefor, is applicable only to such land that may continue to be utilized for its original purpose pending the time when such specified use begins under Article 83 of the Land Law. The period of continued use of the land under the Land Law represents an interim provision designed for the purpose of protecting the established legal status of the land user. Where the lessor of a farmland desires to terminate the lease before the expiration of its term, the Rent Reduction Statute imposes upon him, by Article 17, Paragraph 2, Subparagraph 3, the obligation to give the lessee a compensation, in order to balance the jural relationship between them, and the restraint so imposed on the ownership of the lessor to the farmland constitutes no contravention of the intention of Article 15 of the Constitution in protecting the property right. Nevertheless, the inflexible rule of compensation in one-third of the amount regardless of the actual circumstances must be reviewed and modified at the earliest possible date by the government agency concerned by taking into account factors such as the protection of freedom of contract contemplated by Article 22 of the Constitution and the changes in socio-economic conditions.
Under Article 19, Paragraph 3, of the Rent Reduction Statute as added thereto by amendment on December 23, 1983, the lessor who repossesses his farmland upon expiration of the lease for the purpose of expanding the operation of his family farm and enhancing the efficient utilization of the land shall, by mutatis mutandis application of Article 17, Paragraph 2, Subparagraph 3, of the Statute, give the lessee a compensation equal to one-third of the remaining amount of the land value declared by the government for the period during which the lease is terminated, after deducting therefrom the amount of land value increment tax payable therefor. But, the relationship of lease having been extinguished in consequence of expiration of the lease, imposition on the lessor of a further obligation to compensate the lessee constitutes without doubt an unnecessary burden on the farmland owner, which appears to be similar in nature to a barrier set up to prevent the lessor from repossessing his/her farmland, and is thus contrary to the legislative purpose of encouraging the expansion of the operation of family farms to promote the modernization of agriculture. A fortiori, to repossess the farmland for expansion of his family farm after expiration of the lease, the lessor must satisfy the requirement that he is capable of self-tilling and that the lessee is not deprived thereby of the substance for his family. Inasmuch as the lessee’s family is not devoid of means of livelihood, the requirement that the lessor must assume the obligation to continue ensuring the lessee’s livelihood can hardly be deemed reasonable and justifiable. Consequently, the above provision whereby Article 17, Paragraph 2, Subparagraph 3, of the Statute is made applicable mutatis mutandis to require that compensation be given to the lessee as an additional condition on which the lessor may repossess his farmland is imposing an undue restraint on the property right of the lessor of farmland and can hardly be considered consistent with the purpose of the development of agriculture as embodied in Article 146 of the Constitution and Article 10, Paragraph 1, of the Amendments to the Constitution. Further, the provision is in conflict with the principle of proportionality under Article 23 of the Constitution and the provision set forth in Article 15 of the Constitution for the protection of the property right of the people, and must therefore be rendered ineffective as of the date not later than the last day of the second year from the issuance of this Interpretation.
Article 20 of the Rent Reduction Statute provides that if the lessee desires to renew the lease upon expiration thereof, the lessor is bound to renew the lease unless he has a statutory reason to repossess the land. This is a provision designed to protect the right of the lessee to have the lease renewed when the lessor is legally disallowed from repossessing the farmland, rather than imposing on the lessor any additional burden other than the situations where the lessor is prohibited from repossessing the farmland, and is therefore consistent with the principle of proportionality under Article 23 of the Constitution and the provision set forth in Article 15 of the Constitution for the protection of the property rights of the people.
Reasoning
It must be pointed out at the outset that, in this petition for interpretation, the laws applied in irrevocable adjudications of courts (the Supreme Administrative Court decision No. 90-Pan-Tze-1189, the Supreme Court decision No. 91-Tai-Shang-Tze-908, the Supreme Court ruling No. 90-Tai-Shang-Tze-2236, Taiwan High Court, Taichung Branch, decision No. 89-Shang-Tze-180, and the Supreme Administrative Court decision No. 91-Pan-Tze-875), including the Rent Reduction Statute, Article 5, first sentence; Article 6, Paragraph 1; Article 16, Paragraph 1; Article 17, Paragraph 1, Subparagraph 1 and Paragraph 2, Subparagraph 3; Article 19, Paragraph 1; and Article 20 are documents that may be submitted for our interpretation under the Law of Procedure for Interpretation by the Grand Justices, Article 5, Paragraph 1, Subparagraph 2, and that Article 19, Paragraph 3, of the Rent Reduction Statute, whereby the provision of Article 17, Paragraph 2, Subparagraph 3, of the same Statute relating to compensation payable to the lessee of farmland is made applicable to the situation where the lessor of a farmland repossesses his farmland for the purpose of expanding the operation of his family farm, being of important relevance to the application of Article 19, Paragraph 1, Subparagraph 2, thereof, is also considered by us in delivering this interpretation.
In light of the freedom of development of the individual personality, every person has the right to decide freely how to use, receive benefits from and dispose of the resources necessary for their livelihood, and may thus freely exchange such resources with other persons. Article 15 of the Constitution guarantees the people the protection of their property rights, thereby entitling owners of property with the capacity to exercise their freedom to use, dispose of and receive benefits from their property to the extent of the condition in which the property exists, so that the resources of livelihood on which the people rely for their daily living as well as free development of their personality may be safely protected. Article 22 of the Constitution guarantees the people the freedom of contract, which enables contractual parties to choose freely the manner to make contracts and the provisions thereof, thereby ensuring the freedom to exchange with others the resources of livelihood. However, the skills required for living being varied in degree of competency from person to person, with the possibility of resulting in excessively disproportionate distribution of the overall resources of social life, the State may certainly impose restrictions on the freedom of contract and furthermore the property right of the people by enacting laws within the scope defined by the principle of proportionality under Article 23 of the Constitution for the purpose of reasonable distribution of resources.
Article 143, Paragraph 4, of the Constitution requiring that in the distribution and readjustment of land the State shall in principle assist land-holding farmers and those who make use of the land by themselves and shall also regulate the adequate acreage for their operation, and Article 153, Paragraph 1, providing that in order to improve the livelihood of farmers and to enhance their production skills the State shall enact laws and carry out policies for their protection are intended to effect reasonable distribution of agricultural resources. According to relevant materials kept in the archives of competent government agencies, the policy to reduce the farmland rent was launched in view of the then existing situation that, while the economy in Taiwan was relying on agricultural production and over one half of the total employed population were farmers, a great majority of the agricultural producers were employed farmers, tenant farmers and semi land-holding farmers, whereas the farmland resources were controlled by a small number of landlords who would either terminate the tenancy or raise the rent as they wished, although the rent for some acres was already rather high and the term of the lease was generally unfixed, thereby giving rise to frequent disputes in connection with leases. (See The Annual Report on Statistics of Land Administration in the Taiwan Provinces, Volume 15, P. 3, edited and published May 1997 by The Land Administration Department, Taiwan Provincial Government; and Facts Book of the Land Reform Program in the Early Years after the Recovery of Taiwan, P. 282 et seq., edited and published June 1992 by the Ministry of Interior). Consequently, on March 20, 1947, the government issued the decree No. Chung-Tze-10050 to set a limit on the farmland rent to be paid by all tenant farmers at the rate of 37.5 percent of the yield of the principal product. This executive order, however, was not fully enforced by governments at all levels due to the lack of specific provisions in the Land Law, with the result that the decree turned out to be virtually meaningless. On April 14, 1949, the Regulations on the Lease of Private Farmland in the Taiwan Provinces were promulgated, followed by the issue of the Enforcement Rules of the Regulations on the Lease of Private Farmland in the Taiwan Provinces, Instructions on the Recordation of Private Farmland Lease Contracts in the Taiwan Provinces, the Organic Rules of the Commission for the Supervision over the Implementation of the 37.5 Percent Farmland Rent Reduction Program in the Taiwan Provinces, and the Organic Rules of the Commissions for Supervision over the Implementation of the 37.5 Percent Farmland Rent Reduction Program in the Counties and Cities of the Taiwan Provinces to carry through the 37.5% rent reduction policy by way of overall review of all lease agreements, demanding corrective actions with respect to collection of rent in violation of agreements and illegal cancellation of leases, and assistance in the signing of new contracts in place of and supplementary to existing contracts. Despite such efforts, some landlords had forcibly terminated leases by using the excuse of decreased earnings after reduction of rent. Because the resulting litigations were found difficult to resolve by courts of justice invoking provisions of the Land Law and other relevant laws and regulations, the Statute for the Reduction of Farmland Rent to 37.5 Percent was enacted and promulgated on June 7, 1951, to provide a legal basis for resolving such disputes, so as to uphold the initial success achieved in the implementation of the 37.5% rent reduction program. (See Legislative Yuan Gazette, Vols. 2 & 3 combined edition, p. 40 et seq., published September 30, 1951). To protect the interest of tenant farmers, the Rent Reduction Statute, which has rebuilt the agricultural industrial relationship between lessors and lessees of farmland by way of setting a limit on the rent and stringent restrictive conditions on which lessors of farmland may terminate the lease and demand return of the land, for the purpose of reasonable distribution of agricultural resources and laying a foundation for the development of the national economy, is appropriate in terms of its legislative purposes. While no interim clauses are incorporated into the Statute to protect the vested contractual interest of lessor, the restrictions imposed thereby on the lessor’s freedom of contract and property right are not beyond the expectation of lessors as the government policy to reduce farm rent had been in progress for several years before the Rent Reduction Statute was enacted, allowing lessors the opportunity to familiarize themselves with the rent reduction mechanism, and the very purpose of the Statute is to put into practice the constitutional provisions requiring the State to assist land-holding farmers in the distribution and readjustment of land. Hence the Statute, considering the special historical background and the distinct significance to the public interest attainable through reasonable distribution of agricultural resources, is not in conflict with the constitutional principle of reliance protection.
The Rent Reduction Statute, Article 5, the first sentence, which provides for a minimum period of lease to prevent the lessor from arbitrarily repossessing his land, is designed to encourage the lessee to engage in activities for improvements of the land and agricultural production techniques for the purpose of increasing the productivity of farmland and developing the lessee’s ability to operate and acquire land. Article 6, Paragraph 1, requiring that all lease agreements must be made in writing and recorded upon application to be submitted jointly by both the lessor and the lessee is intended to prevent disputes often arising out of oral agreements. The provision of Article 16, Paragraph 1, prohibiting sub-lease of farmland, aims to further maintain a stabilized relationship of lease, where the lessee will keep his promise to engage in farming, so that the farmland will not become a tool with which intermediate exploitation may be undertaken. The statutory reasons for termination of lease specified by Article 17, Paragraph 1, Subparagraph 1, of the Statute, applicable only to the circumstance where the lessee dies during the term of the lease, leaving no heir to continue farming the land, make it possible for the lessor to repossess the land if the lessee’s heir is incapable of self-tilling, and thus allow the option for the lessors to repossess the land for farming by themselves. Such provisions are helpful in carrying out the nation’s fundamental policies designed to assist land-holding farmers and to improve the livelihood of farmers. While the freedom of contract and the property right of lessors are subject to certain restraints, the approach is necessary and appropriate in light of the purpose of the legislation, and the interest of both lessors and lessees is likewise being ensured. The provisions are thus consistent with the Constitution insofar as the principle of proportionality under Article 23, the safeguard of the freedom of contract under Article 22, the property right under Article 15 and the equality right under Article 7 are concerned.
The Rent Reduction Statute provides in Article 19, Paragraph 1, Subparagraph 1, that a lessor incapable of self-tilling is not entitled to demand return of his land, whereby a lessee capable of farming will not be caught in the situation of losing the land to work on. It reflects the essential means to put into practice the provision of Article 143, Paragraph 4, for assisting land-holding farmers. However, to deal with the situation of worldwide agricultural competition and encourage the development of agricultural technologies and new diversified industrial patterns, the meaning of the expression “self-tilling by the lessor” therein is not limited to the situation of personal farming by manual labor in light of the purpose of Article 146 of the Constitution and Article 10, Paragraph 1, of the Amendments to the Constitution for the industrialization and modernization of agriculture. Within the meaning is also included self-farming or contracting someone else to do the farming by way of agricultural technology and in the manner of a businesslike operation. Under the Rent Reduction Statute, Article 19, Paragraph 1, Subparagraph 2, the lessor has no right to repossess the land for his own cultivation if the total income of the lessor is sufficient to support his family. This provision has virtually made the lease renewal for an indefinite term of duration, thereby weakening the desire of the lessee to make himself a land-holding farmer and representing a departure from the purpose of Article 143, Paragraph 4, to support land-holding farmers. However, in consequence of the amendment made by the Legislature on December 23, 1983, by adding to the article the second paragraph allowing the lessor to repossess for his own cultivation the farmland situated in the same sector as or in a sector adjacent to his self-cultivated land for the purpose of expanding the business of his family farm, the restraint on the property right of lessors is thus eased and thereby the lease of farmland would not deprive the lessor of his ownership of the land. Subparagraph 3 of the same article, which prohibits the lessor from repossessing his land if the lessee will be deprived of the subsistence for his family, is an essential measure to protect the fundamental means of livelihood of farmland lessees for carrying out the policy to improve farmers’ livelihood as declared in Article 153, Paragraph 1, of the Constitution; and if the lessor is likewise devoid of the means to support his family s/he may request that the farmland lease and tenancy committee mediate, so that the actual needs of both lessor and lessee can be ensured. In light of the policies to assist land-holding farmers under Article 143, Paragraph 4, of the Constitution, to promote the industrialization and modernization of agriculture under Article 146 of the Constitution and Article 10, Paragraph 1, of the Amendments to the Constitution, and to improve the livelihood of farmers under Article 153, Paragraph 1, of the Constitution, the provisions of the three subparagraphs cited above, placing constraint on ownership to farmland by setting forth restrictive conditions on which lessors of farmland may repossess the land, appear to be necessary and are found consistent with the principle of proportionality under Article 23 of the Constitution and the provision of Article 15 of the Constitution with respect to the protection of the property right of the people. As regards the question of whether or not the lessor may lease the repossessed farmland to another person, it is a question of application of law.
Article 17, Paragraph 2, Subparagraph 3, of the Rent Reduction Statute, as added thereto by amendment on December 23, 1983, whereby the lessor of a farmland that is classified as or changed into land for non-cultivation use before the expiration of the lease shall give the lessee a compensation equal to one-third of the remaining amount of the government-declared current land value after deducting therefrom the amount of land value increment tax payable therefor, is applicable only to such land that may continue to be utilized for its original purpose pending the time when such specified use begins under Article 83 of the Land Law. The period of continued use of the land under the Land Law represents an interim provision designed to protect the established legal status of the land user. Because the lease of the farmland has not yet expired, the land may of course be used continuously for its original purpose for a specific period of time. In such circumstance, if the lessor of the farmland desires to terminate the lease before the expiration of its term, the Rent Reduction Statute imposes upon him, by Article 17, Paragraph 2, Subparagraph 3, the obligation to give the lessee a compensation, in order to indemnify the lessee for the damage suffered as a result of loss of his right to the lease and to balance the jural relationship between them. The restraint so imposed on the ownership of the lessor to the farmland constitutes no contravention of the intention of Article 15 of the Constitution in protecting the property right. Nevertheless, the inflexible rule of compensation in one-third of the amount regardless of the actual circumstances must be reviewed and modified at the earliest possible date by the government agency concerned by taking into account factors such as the protection of the freedom of contract contemplated by Article 22 of the Constitution and changes in socio-economic conditions.
Under Article 19, Paragraph 3, of the Rent Reduction Statute as added thereto by amendment on December 23, 1983, the lessor who repossesses his farmland upon expiration of the lease for the purpose of expanding the operation of his family farm and enhancing the efficient utilization of the land shall, by mutatis mutandis application of Article 17, Paragraph 2, Subparagraph 3, of the Statute, give the lessee a compensation equal to one-third of the remaining amount of the land value declared by the government for the period during which the lease is terminated, after deducting therefrom the amount of land value increment tax payable therefor. But, the relationship of lease being automatically extinguished upon expiration of the lease, the imposition on the lessor of a further obligation to compensate the lessee constitutes an unnecessary burden on the farmland owner, which is similar by nature to a barrier set up to prevent the lessor from taking back his farmland, and is thus contrary to the legislative purpose of encouraging the expanded operation of family farms to promote the modernization of agriculture. A fortiori, to repossess the farmland after expiration of the lease, albeit for expansion of his family farm, the lessor must satisfy the requirement that he is capable of self-tilling and that the lessee is not deprived thereby of the subsistence for his family. Inasmuch as the lessee’s family is not devoid of means of livelihood, the requirement that the lessor must assume the further obligation to take care of the lessee’s livelihood can hardly be deemed reasonable and justifiable. Consequently, the above provision, whereby Article 17, Paragraph 2, Subparagraph 3, of the Statute is made applicable mutatis mutandis to require that compensation be given to the lessee as an additional condition on which the lessor may repossess his farmland, is imposing an undue restraint on the property right of the lessor of farmland and is inconsistent with the purpose for the development of agriculture as embodied in Article 146 of the Constitution and Article 10, Paragraph 1, of the Amendments to the Constitution. The provision is further in conflict with the principle of proportionality under Article 23 of the Constitution and the provision set forth in Article 15 of the Constitution for the protection of the property right of the people, and must therefore be rendered ineffective as of the date not later than the last day of the second year from the issuance of this Interpretation.
Article 20 of the Rent Reduction Statute provides that, if the lessee desires to renew the lease upon expiration thereof, the lessor is bound to renew the lease unless the lessor has a statutory reason to repossess the land. It limits the right of the lessee to have the lease renewed to the situation where the lessor is not legally permitted to repossess the farmland. In the situation where the lessor is not legally permitted to repossess the farmland, the provision to restrain the lessor’s freedom of contract and to impose on him the obligation to renew the lease is intended to prevent the lease and tenancy contract from falling into an uncertain condition, rather than imposing on the lessor an additional burden other than the situations where the lessor is prohibited from demanding return of the farmland, and is therefore consistent with the principle of proportionality under Article 23 of the Constitution and the provision set forth in Article 15 of the Constitution for the protection of the property right of the people.
' Translated by Raymond T. Chu.
解釋字號： 釋字第 580 號
解釋日期： 民國 93 年 07 月 09 日
解釋爭點：
耕地三七五減租條例約滿收回須補償承租人等規定違憲?
資料來源：
司法周刊 第 1193 期
司法院公報 第 46 卷 8 期 1-70 頁
法令月刊 第 55 卷 8 期 97-101 頁
月旦法學雜誌 第 112 期 246-250 頁
總統府公報 第 6592 號 33-120 頁
守護憲法 60 年 第 104-106 頁
相關法條：
中華民國憲法 第 15、22、23、143、146、153 條 ( 36.01.01 )
耕地三七五減租條例 第 5、6、17、19 條 ( 91.05.15 )
中華民國憲法增修條文 第 10 條 ( 89.04.25 )
解 釋 文：
基於個人之人格發展自由，個人得自由決定其生活資源之使用、收益及處分，因而得自由與他人為生活資源之交換，是憲法於第十五條保障人民之財產權，於第二十二條保障人民之契約自由。惟因個人生活技能強弱有別，可能導致整體社會生活資源分配過度不均，為求資源之合理分配，國家自得於不違反憲法第二十三條比例原則之範圍內，以法律限制人民締約之自由，進而限制人民之財產權。
憲法第一百四十三條第四項扶植自耕農之農地使用政策，以及憲法第一百五十三條第一項改良農民生活之基本國策，均係為合理分配農業資源而制定。中華民國四十年六月七日制定公布之耕地三七五減租條例 (以下稱減租條例) ，旨在秉承上開憲法意旨，為三十八年已開始實施之三七五減租政策提供法律依據，並確保實施該政策所獲致之初步成果。其藉由限制地租、嚴格限制耕地出租人終止耕地租約及收回耕地之條件，重新建構耕地承租人與出租人之農業產業關係，俾合理分配農業資源並奠定國家經濟發展方向，立法目的尚屬正當。雖未設置保護出租人既有契約利益之過渡條款，惟因減租條例本在實現憲法規定國家對於土地之分配與整理暨扶植自耕農之意旨，且於條例制定之前，減租政策業已積極推行數年，出租人得先行於過渡時期熟悉減租制度，減租條例對出租人契約自由及財產權之限制，要非出租人所不能預期，衡諸特殊之歷史背景及合理分配農業資源之非常重大公共利益，尚未違背憲法上之信賴保護原則。
減租條例第五條前段關於租賃期限不得少於六年，以及同條例第六條第一項暨第十六條第一項關於締約方式與轉租禁止之規定，均為穩定租賃關係而設；同條例第十七條第一項第一款規定租賃期限內，承租人死亡無人繼承耕作之法定終止租約事由，並保留出租人收回耕地之彈性。上開規定皆有利於實現扶植自耕農及改善農民生活之基本國策，縱於出租人之契
約自由及財產權有所限制，衡諸立法目的，其手段仍屬必要而且適當，亦兼顧承租人與出租人雙方之利益，與憲法第二十三條比例原則、第二十二條契約自由、第十五條財產權及第七條平等權之保障並無違背。
減租條例第十九條第一項第一款之規定，為實現憲法第一百四十三條第四項扶植自耕農之意旨所必要，惟另依憲法第一百四十六條及憲法增修條文第十條第一項發展農業工業化及現代化之意旨，所謂出租人之自任耕作，不以人力親自實施耕作為限，為農業科技化及企業化經營之自行耕作或委託代耕者亦屬之。減租條例第十九條第一項第二款規定出租人於所有收益足以維持一家生活者不得收回自耕，使租約變相無限期延長，惟立法機關嗣於七十二年十二月二十三日增訂之第二項，規定為擴大家庭農場經營規模得收回與其自耕地同一或鄰近地段內之耕地自耕，已放寬對於出租人財產權之限制。同條項第三款規定，如出租人收回耕地，承租人將失其家庭生活依據者，亦不得收回耕地，係為貫徹憲法第一百五十三條第一項保護農民政策之必要手段；且如出租人亦不能維持其一家生活，尚得申請耕地租佃委員會調處，以兼顧出租人與承租人之實際需要。衡諸憲法第一百四十三條第四項扶植自耕農、第一百四十六條與憲法增修條文第十條第一項發展農業工業化及現代化，以及憲法第一百五十三條第一項改善農民生活之意旨，上開三款限制耕地出租人收回耕地之規定，對於耕地所有權之限制，尚屬必要，與憲法第二十三條比例原則及第十五條保障人民財產權規定之意旨要無不符。
七十二年十二月二十三日增訂之減租條例第十七條第二項第三款關於租約期限尚未屆滿而農地因土地編定或變更為非耕地時，應以土地公告現值扣除土地增值稅後餘額之三分之一補償承租人之規定，乃限於依土地法第八十三條所規定之使用期限前得繼續為從來之使用者，方有其適用。土地法所規定之繼續使用期限，係為保護土地使用人既有之法律地位而設之過渡條款，耕地出租人如欲於期前終止租約，減租條例第十七條第二項第三款即賦予補償承租人之義務，乃為平衡雙方權利義務關係，對出租人耕地所有權所為之限制，尚無悖於憲法第十五條保障財產權之本旨。惟不問情狀如何，補償額度一概為三分之一之規定，有關機關應衡酌憲法第二十二條保障契約自由之意旨及社會經濟條件之變遷等情事，儘速予以檢討修正。七十二年十二月二十三日增訂之減租條例第十九條第三項規定，耕地租約期滿時，出租人為擴大家庭農場經營規模、提升土地利用效率而收回耕地時，準用同條例第十七條第二項第三款之規定，應以終止租約當期土地公告現值扣除土地增值稅餘額後之三分之一補償承租人。惟契約期滿後，租賃關係既已消滅，如另行課予出租人補償承租人之義務，自屬增加耕地所有權人不必要之負擔，形同設置出租人收回耕地之障礙，與鼓勵擴大家庭農場經營規模，以促進農業現代化之立法目的顯有牴觸。況耕地租約期滿後，出租人仍須具備自耕能力，且於承租人不致失其家庭生活依據時，方得為擴大家庭農場經營規模而收回耕地。按承租人之家庭生活既非無依，竟復令出租人負擔承租人之生活照顧義務，要難認有正當理由。是上開規定準用同條例第十七條第二項第三款部分，以補償承租人作為收回耕地之附加條件，不當限制耕地出租人之財產權，難謂無悖於憲法第一百四十六條與憲法增修條文第十條第一項發展農業之意旨，且與憲法第二十三條比例原則及第十五條保障人民財產權之規定不符，應自本解釋公布日起，至遲於屆滿二年時，失其效力。
減租條例第二十條規定租約屆滿時，除法定收回耕地事由外，承租人如有續約意願，出租人即有續約義務，為出租人依法不得收回耕地時，保障承租人續約權利之規定，並未於不得收回耕地之諸種事由之外，另行增加耕地出租人不必要之負擔，與憲法第二十三條規定之比例原則及第十五條保障財產權之規定尚無不符。
理 由 書：
本件聲請案相關確定裁判（最高行政法院九十年度判字第一一八九號判決、最高法院九十一年度台上字第九○八號判決、最高法院九十年度台上字第二二三六號裁定、台灣高等法院台中分院八十九年度上字第一八○號判決、最高行政法院九十一年度判字第八七五號判決）所適用之法律，包括減租條例第五條前段、第六條第一項、第十六條第一項、第十七條第一項第一款與第二項第三款、第十九條第一項及第二十條等，依司法院大法官審理案件法第五條第一項第二款規定，得為解釋之客體；減租條例第十九條第三項於耕地出租人為擴大家庭農場經營規模而收回耕地時，應準用同條例第十七條第二項第三款補償耕地承租人之規定，與第十九條第一項第二款之適用有重要關聯，應一併納入解釋範圍，合先敘明。
基於個人之人格發展自由，個人得自由決定其生活資源之使用、收益及處分，因而得自由與他人為生活資源之交換。憲法第十五條保障人民之財產權，使財產所有人得依財產之存續狀態行使其自由使用、收益及處分之權能，以確保人民所賴以維繫個人生存及自由發展其人格之生活資源；憲法第二十二條保障人民之契約自由，使契約當事人得自由決定其締約方式及締約內容，以確保與他人交換生活資源之自由。惟因個人生活技能強弱有別，可能導致整體社會生活資源分配過度不均，為求資源之合理分配，國家自得於不違反憲法第二十三條比例原則之範圍內，以法律限制人民締約之自由，進而限制人民之財產權。
憲法第一百四十三條第四項規定，國家對於土地之分配與整理，應以扶植自耕農及自行使用土地人為原則，並規定其適當經營之面積；憲法第一百五十三條第一項規定，國家為改良農民生活，增進其生活技能，應制定保護農民之法律，實施保護農民之政策，均係為合理分配農業資源而設之規定。依據主管機關相關文獻之記載，推行耕地減租政策，係鑒於當時台灣經濟倚重農業生產，農業人口佔就業人口半數以上，大多數之農業生產者為雇農、佃農及半自耕農，農地資源集中於少數地主手中，而部分佃租偏高，租期並不固定，地主任意撤佃升租者有之，以致租權糾紛經常出現（參照台灣省政府地政處編印，台灣省地政統計年報第十五期，八十六年五月出版，頁三；內政部編印，台灣光復初期土地改革實錄專輯，八十一年六月出版，頁二八二以下）。政府乃於三十六年三月二十日以從字第一○○五○號訓令規定佃農應繳之耕地地租，依正產物千分之三百七十五計算，惟因當時之土地法未有明文規定，各級政府推行法令不力，上開訓令形同具文；三十八年四月十四日公布實施「臺灣省私有耕地租用辦法」，並陸續訂定「臺灣省私有耕地租用辦法施行細則」、「臺灣省辦理私有耕地租約登記注意事項」、「臺灣省推行三七五減租督導委員會組織規程」及「臺灣省各縣市推行三七五減租督導委員會組織規程」等法規，進行全省租約總檢查、糾正違約收租及違法撤佃事件、辦理換約及補訂租約，以貫徹三七五減租政策。因仍有地主以減租後收益降低，強迫撤佃，司法機關沿用土地法及相關法令無法解決訟爭，為確保推行三七五減租已獲得之初步成果，即於四十年六月七日制定公布耕地三七五減租條例，作為法律依據（參照立法院公報第二期及第三期合訂本，四十年九月三十日出版，頁四十以下）。減租條例為保障佃農權益，藉由限制地租、嚴格限制耕地出租人終止耕地租約及收回耕地之條件，重新建構耕地承租人與出租人之農業產業關係，俾合理分配農業資源並奠定國家經濟發展之方向，立法目的尚屬正當。雖未設置保護出租人既有契約利益之過渡條款，惟因減租條例本在實現憲法規定國家對於土地之分配與整理暨保護佃農之意旨，且於條例制定之前，減租政策業已積極推行數年，出租人得先行於過渡時期熟悉減租制度，減租條例對出租人契約自由及財產權之限制，要非出租人所不能預期，衡諸特殊之歷史背景及合理分配農業資源之非常重大公共利益，尚非憲法上之信賴保護原則所不許。
減租條例第五條前段規定最低之租賃期限，藉由防止耕地出租人任意收回土地，提高承租人改良土地與改進農業生產技術之意願，以增加農地之生產力，並培植承租人經營及取得土地之能力；同條例第六條第一項規定租約以書面定之，租佃雙方應會同申請登記，用以杜絕口頭約定所經常導致之租權糾紛；同條例第十六條第一項關於轉租禁止之規定，乃為進一步穩定租賃關係，使承租人履行耕作約定，避免耕地成為中間剝削之工具；同條例第十七條第一項第一款規定之法定終止租約事由，僅適用於租賃期限內，承租人死亡而無人繼承耕作之情形，如承租人之繼承人不能自任耕作，出租人自得收回耕地，已保留出租人收回自耕之彈性。上開規定皆有利於實現扶植自耕農及改善農民生活之基本國策，縱於出租人之契約自由及財產權有所限制，衡諸立法目的，其手段仍屬必要而且適當，亦兼顧承租人與出租人雙方之利益，與憲法第二十三條比例原則、第二十二條契約自由、第十五條財產權及第七條平等權之保障並無違背。
減租條例第十九條第一項第一款規定租約期滿，出租人如無自任耕作之能力，不得收回耕地，使有耕作能力之承租人，不致無地可耕，乃實現憲法第一百四十三條第四項扶植自耕農之必要手段；惟另依憲法第一百四十六條及憲法增修條文第十條第一項發展農業工業化及現代化之意旨，為因應全球化之農業競爭環境、獎勵農業科技及多元化新產業型態之發展，所謂出租人之自任耕作，不以人力親自實施耕作為限，為農業科技化及企業化經營之自行耕作或委託代耕者亦屬之。減租條例第十九條第一項第二款規定出租人於所有收益足以維持一家生活者不得收回自耕，使租約變相無限期延長，可能降低承租人成為自耕農之意願，而偏離憲法第一百四十三條第四項規定扶植自耕農之本旨。惟立法機關嗣於七十二年十二月二十三日增訂第二項，規定為擴大家庭農場經營規模，得收回與其自耕地同一或鄰近地段內之耕地自耕，放寬對於出租人財產權之限制，使耕地之出租不致形同剝奪耕地出租人之土地所有權。減租條例第十九條第一項第三款規定，如出租人收回耕地，承租人將失其家庭生活依據者，亦不得收回耕地，乃為保障耕地承租人之基本生活，以實現憲法第一百五十三條第一項規定改善農民生活之必要手段；且如出租人亦不能維持其一家生活，尚得依本條第四項規定，申請鄉（鎮、市、區）公所耕地租佃委員會調處之，以兼顧出租人與承租人之實際需要。衡諸憲法第一百四十三條第四項扶植自耕農、第一百四十六條與憲法增修條文第十條第一項發展農業工業化及現代化，以及憲法第一百五十三條第一項改善農民生活之意旨，上開三款限制耕地出租人收回耕地之規定，對於耕地所有權之限制，尚屬必要，與憲法第二十三條比例原則及第十五條保障人民財產權規定之意旨無違。至耕地出租人收回耕地後，是否得另行出租予他人，乃法律適用之問題。
另七十二年十二月二十三日增訂之減租條例第十七條第二項第三款關於租約期限尚未屆滿而農地因土地編定或變更為非耕地時，耕地出租人應以土地公告現值扣除土地增值稅後餘額之三分之一補償承租人之規定，乃限於依土地法第八十三條所規定之編定使用地於其所定使用期限前得繼續為從來之使用者，方有其適用。土地法所規定之繼續使用期限，係為保護土地使用人既有之法律地位而設之過渡條款，耕地租約既未屆滿，耕地於一定期限內，復尚得為從來之使用，如耕地出租人欲於期前終止租約，依減租條例第十七條第二項第三款之規定，即應承擔補償耕地承租人之義務，乃為彌補耕地承租人喪失耕地租賃權之損失，以平衡雙方權利義務關係而對出租人耕地所有權所為之合理限制，尚無悖於憲法第十五條保障財產權之本旨。惟不問情狀如何，補償額度一概為三分之一之規定，有關機關應衡酌憲法第二十二條保障契約自由之意旨及社會經濟條件之變遷等情事，儘速予以檢討修正。
七十二年十二月二十三日增訂之減租條例第十九條第三項規定，耕地租約期滿時，出租人為擴大家庭農場經營規模、提升土地利用效率而收回耕地時，準用同條例第十七條第二項第三款之規定，應以終止租約當期土地公告現值扣除土地增值稅餘額後之三分之一補償承租人。然契約期滿後，當事人之租賃關係當然消滅，猶另行課予出租人補償承租人之義務，乃增加耕地所有權人不必要之負擔，形同設置出租人收回耕地之障礙，與鼓勵出租人收回自耕、擴大家庭農場經營規模，以促進農業現代化之立法目的顯有牴觸。況耕地租約期滿後，出租人縱為擴大家庭農場經營規模，仍須具備自耕能力，且於承租人不致失其家庭生活依據時，方得收回耕地。
準此，承租人之家庭生活既非無依，竟復令出租人負擔承租人之生活照顧義務，難謂有正當理由。是上開規定準用同條例第十七條第二項第三款部分，以補償承租人作為收回耕地之附加條件，不當限制耕地出租人之財產權，與憲法第一百四十六條、憲法增修條文第十條第一項發展農業之意旨不符，並違背憲法第二十三條比例原則之規定及第十五條對人民財產權之保障，應自本解釋公布日起，至遲於屆滿二年時，失其效力。
減租條例第二十條規定租約屆滿時，除法定收回耕地事由外，承租人如有續約意願，出租人即有續約義務，對於承租人續約權利之保障，限於出租人依法不得收回耕地之情形，出租人依法既不得收回耕地，限制出租人之締約自由，而賦予續約義務，乃為避免租佃契約陷於不確定之狀態，並未於不得收回耕地之諸種事由之外，另行增加耕地出租人不必要之負擔，與憲法第二十三條規定之比例原則及第十五條保障財產權之規定尚無不符。
J. Y. Interpretation No. 580
Date 2004.7.9
Issue
Where the Statute for the Reduction of Farmland Rent to 37.5 Percent contains, inter alia, clauses that constrain the freedom of contract and property right of landlords by setting a limit on the farmland rent at 37.5%, specifying restrictive conditions on which the landlord may not terminate the lease, requiring that the landlord give the lessee certain compensation in case the lessee is deprived of subsistence for his/her family as a result of termination of the lease, are such clauses constitutional in light of the fundamental national policies as declared by the Constitution on reasonable distribution of land resources and improvement of the livelihood of farmers through the implementation of the government’s land reform program designed to assist tenant farmers and to promote the development and modernization of agriculture?
Holding
In light of the freedom of development of the individual personality, every person has the right to decide freely how to use, receive benefits from and dispose of the resources needed for their livelihood, and may thus freely exchange such resources with other persons. For this reason, the Constitution provides in Article 15 for the protection of the people’s property right and in Article 22 for the protection of the people’s freedom of contract. However, the skills required for living being varied in degree of competency from person to person, with the possibility of resulting in excessively disproportionate distribution of the overall resources of social life, the State may certainly impose restrictions on the freedom of contract and, furthermore, the property right of the people by enacting laws within the scope defined by the principle of proportionality under Article 23 of the Constitution for the purpose of reasonable distribution of resources.
The policy on the use of farmland through assistance to land-holding farmers as stated in the Constitution, Article 143, Paragraph 4, and the nation’s fundamental policy on the improvement of the livelihood of farmers as announced in Article 153, Paragraph 1, are formulated for the purpose of making reasonable distribution of agricultural resources. The Statute for the Reduction of Farmland Rent to 37.5 Percent (hereinafter the “Rent Reduction Statute”) promulgated on June 7, 1951, in pursuance of the purposes contemplated by the Constitution as mentioned above was enacted to provide a legal basis for the policy launched in 1949 on the reduction of farmland rent to 37.5 percent and to ensure that the initial outcome achieved by implementation of such policy could be maintained. To make reasonable distribution of agricultural resources and lay a foundation for development of the national economy, the Rent Reduction Statute rebuilds the agricultural industrial relationship between lessors and lessees of farmland by setting a limit on the rent and specifying strict restrictive conditions on termination of a farmland lease and on repossession of such land by the lessor and has thus a legitimate legislative purpose. While no interim clauses are incorporated into the Statute to protect the vested contractual interest of lessors, the restrictions imposed thereby on the lessor’s freedom of contract and property right are not beyond the expectation of lessors as the government policy to reduce farm rent had been actively in progress for several years before the Rent Reduction Statute was enacted, allowing lessors the opportunity to familiarize themselves with the rent reduction mechanism, and the very purpose of the Statute is to put into practice the constitutional provisions requiring the State to assist land-holding farmers in the distribution and readjustment of land. Hence the Statute, considering the special historical background and the distinct significance to the public interest attainable through reasonable distribution of agricultural resources, is not in conflict with the constitutional principle of reliance protection.
The provisions of the Rent Reduction Statute, Article 5, first sentence, requiring that the minimum duration of the lease must be no less than six years, and Article 6, Paragraph 1 and Article 16, Paragraph 1, setting out the manner of execution of lease agreements and the prohibition of sub-lease, are all intended to stabilize the lessor-lessee relationship; and the Statute specifies in Article 17, Paragraph 1, Subparagraph 1, the circumstances where the lease may be legally terminated upon the death of the lessee during the term of the lease, leaving no heir capable of continued cultivation of the land, and retains for the lessor the option to repossess the land. The foregoing provisions are all helpful in carrying out the nation’s fundamental policies to assist land-holding farmers and to improve the livelihood of farmers. While the freedom of contract and property right of lessors are subject to certain restraints, the approach is necessary and appropriate in light of the purpose of the legislation, and the interest of both lessors and lessees is likewise ensured. The provisions are thus consistent with the Constitution insofar as the principle of proportionality under Article 23, the safeguard of the freedom of contract under Article 22, the right to property under Article 15 and the equality right under Article 7 are concerned.
While the provision of Article 19, Paragraph 1, Subparagraph 1, of the Rent Reduction Statute is essential to achieving the objective to assist land-holding farmers as contemplated by Article 143, Paragraph 4, of the Constitution, the meaning of “self-tilling by the lessor” therein is not limited to the situation of personal cultivation by manual labor in light of the purpose of Article 146 of the Constitution and Article 10, Paragraph 1, of the Amendments to the Constitution relating to the industrialization and modernization of agriculture. Within the meaning is also included self-farming or contracting someone else to do the farming by way of agricultural technology and in the manner of a businesslike operation. Under the Rent Reduction Statute, Article 19, Paragraph 1, Subparagraph 2, the lessor has no right to repossess the land for his own cultivation if the total income of the lessor is sufficient to support his family. This provision has virtually made the lease renewable for an indefinite term of duration. However, in consequence of the amendment made by the Legislature on December 23, 1983, by adding to the article the second paragraph allowing the lessor to repossess for his own cultivation the farmland situated in the same sector as or in a sector adjacent to his self-cultivated land for the purpose of expanding the business of his family farm, the restraint on the property right of lessors is accordingly eased. Subparagraph 3 of the same article which prohibits the lessor from repossessing his land if the lessee will be deprived of the subsistence for his family is an essential measure for carrying out the policy to protect farmers as declared in Article 153, Paragraph 1, of the Constitution; and if the lessor is likewise devoid of the means to support his family he may request the farmland lease and tenancy committee to mediate, so that the actual needs of both the lessor and the lessee are ensured. In light of the policies to assist land-holding farmers under Article 143, Paragraph 4, of the Constitution, to promote the industrialization and modernization of agriculture under Article 146 of the Constitution and Article 10, Paragraph 1, of the Amendments to the Constitution, and to improve the livelihood of farmers under Article 153, Paragraph 1, of the Constitution, the provisions of the three subparagraphs cited above, which place constraint on ownership of farmland by setting forth restrictive conditions on which lessors of farmland may repossess the land, are found to be necessary and consistent with the principle of proportionality under Article 23 of the Constitution and the provision of Article 15 of the Constitution with respect to the protection of the property right of the people.
Article 17, Paragraph 2, Subparagraph 3, of the Rent Reduction Statute, as added thereto by amendment on December 23, 1983, whereby the lessor of a farmland that is classified as or changed into land for non-cultivation use before the expiration of the lease thereof shall give the lessee a compensation equal to one-third of the remaining amount of the government-declared current land value after deducting therefrom the amount of land value increment tax payable therefor, is applicable only to such land that may continue to be utilized for its original purpose pending the time when such specified use begins under Article 83 of the Land Law. The period of continued use of the land under the Land Law represents an interim provision designed for the purpose of protecting the established legal status of the land user. Where the lessor of a farmland desires to terminate the lease before the expiration of its term, the Rent Reduction Statute imposes upon him, by Article 17, Paragraph 2, Subparagraph 3, the obligation to give the lessee a compensation, in order to balance the jural relationship between them, and the restraint so imposed on the ownership of the lessor to the farmland constitutes no contravention of the intention of Article 15 of the Constitution in protecting the property right. Nevertheless, the inflexible rule of compensation in one-third of the amount regardless of the actual circumstances must be reviewed and modified at the earliest possible date by the government agency concerned by taking into account factors such as the protection of freedom of contract contemplated by Article 22 of the Constitution and the changes in socio-economic conditions.
Under Article 19, Paragraph 3, of the Rent Reduction Statute as added thereto by amendment on December 23, 1983, the lessor who repossesses his farmland upon expiration of the lease for the purpose of expanding the operation of his family farm and enhancing the efficient utilization of the land shall, by mutatis mutandis application of Article 17, Paragraph 2, Subparagraph 3, of the Statute, give the lessee a compensation equal to one-third of the remaining amount of the land value declared by the government for the period during which the lease is terminated, after deducting therefrom the amount of land value increment tax payable therefor. But, the relationship of lease having been extinguished in consequence of expiration of the lease, imposition on the lessor of a further obligation to compensate the lessee constitutes without doubt an unnecessary burden on the farmland owner, which appears to be similar in nature to a barrier set up to prevent the lessor from repossessing his/her farmland, and is thus contrary to the legislative purpose of encouraging the expansion of the operation of family farms to promote the modernization of agriculture. A fortiori, to repossess the farmland for expansion of his family farm after expiration of the lease, the lessor must satisfy the requirement that he is capable of self-tilling and that the lessee is not deprived thereby of the substance for his family. Inasmuch as the lessee’s family is not devoid of means of livelihood, the requirement that the lessor must assume the obligation to continue ensuring the lessee’s livelihood can hardly be deemed reasonable and justifiable. Consequently, the above provision whereby Article 17, Paragraph 2, Subparagraph 3, of the Statute is made applicable mutatis mutandis to require that compensation be given to the lessee as an additional condition on which the lessor may repossess his farmland is imposing an undue restraint on the property right of the lessor of farmland and can hardly be considered consistent with the purpose of the development of agriculture as embodied in Article 146 of the Constitution and Article 10, Paragraph 1, of the Amendments to the Constitution. Further, the provision is in conflict with the principle of proportionality under Article 23 of the Constitution and the provision set forth in Article 15 of the Constitution for the protection of the property right of the people, and must therefore be rendered ineffective as of the date not later than the last day of the second year from the issuance of this Interpretation.
Article 20 of the Rent Reduction Statute provides that if the lessee desires to renew the lease upon expiration thereof, the lessor is bound to renew the lease unless he has a statutory reason to repossess the land. This is a provision designed to protect the right of the lessee to have the lease renewed when the lessor is legally disallowed from repossessing the farmland, rather than imposing on the lessor any additional burden other than the situations where the lessor is prohibited from repossessing the farmland, and is therefore consistent with the principle of proportionality under Article 23 of the Constitution and the provision set forth in Article 15 of the Constitution for the protection of the property rights of the people.
Reasoning
It must be pointed out at the outset that, in this petition for interpretation, the laws applied in irrevocable adjudications of courts (the Supreme Administrative Court decision No. 90-Pan-Tze-1189, the Supreme Court decision No. 91-Tai-Shang-Tze-908, the Supreme Court ruling No. 90-Tai-Shang-Tze-2236, Taiwan High Court, Taichung Branch, decision No. 89-Shang-Tze-180, and the Supreme Administrative Court decision No. 91-Pan-Tze-875), including the Rent Reduction Statute, Article 5, first sentence; Article 6, Paragraph 1; Article 16, Paragraph 1; Article 17, Paragraph 1, Subparagraph 1 and Paragraph 2, Subparagraph 3; Article 19, Paragraph 1; and Article 20 are documents that may be submitted for our interpretation under the Law of Procedure for Interpretation by the Grand Justices, Article 5, Paragraph 1, Subparagraph 2, and that Article 19, Paragraph 3, of the Rent Reduction Statute, whereby the provision of Article 17, Paragraph 2, Subparagraph 3, of the same Statute relating to compensation payable to the lessee of farmland is made applicable to the situation where the lessor of a farmland repossesses his farmland for the purpose of expanding the operation of his family farm, being of important relevance to the application of Article 19, Paragraph 1, Subparagraph 2, thereof, is also considered by us in delivering this interpretation.
In light of the freedom of development of the individual personality, every person has the right to decide freely how to use, receive benefits from and dispose of the resources necessary for their livelihood, and may thus freely exchange such resources with other persons. Article 15 of the Constitution guarantees the people the protection of their property rights, thereby entitling owners of property with the capacity to exercise their freedom to use, dispose of and receive benefits from their property to the extent of the condition in which the property exists, so that the resources of livelihood on which the people rely for their daily living as well as free development of their personality may be safely protected. Article 22 of the Constitution guarantees the people the freedom of contract, which enables contractual parties to choose freely the manner to make contracts and the provisions thereof, thereby ensuring the freedom to exchange with others the resources of livelihood. However, the skills required for living being varied in degree of competency from person to person, with the possibility of resulting in excessively disproportionate distribution of the overall resources of social life, the State may certainly impose restrictions on the freedom of contract and furthermore the property right of the people by enacting laws within the scope defined by the principle of proportionality under Article 23 of the Constitution for the purpose of reasonable distribution of resources.
Article 143, Paragraph 4, of the Constitution requiring that in the distribution and readjustment of land the State shall in principle assist land-holding farmers and those who make use of the land by themselves and shall also regulate the adequate acreage for their operation, and Article 153, Paragraph 1, providing that in order to improve the livelihood of farmers and to enhance their production skills the State shall enact laws and carry out policies for their protection are intended to effect reasonable distribution of agricultural resources. According to relevant materials kept in the archives of competent government agencies, the policy to reduce the farmland rent was launched in view of the then existing situation that, while the economy in Taiwan was relying on agricultural production and over one half of the total employed population were farmers, a great majority of the agricultural producers were employed farmers, tenant farmers and semi land-holding farmers, whereas the farmland resources were controlled by a small number of landlords who would either terminate the tenancy or raise the rent as they wished, although the rent for some acres was already rather high and the term of the lease was generally unfixed, thereby giving rise to frequent disputes in connection with leases. (See The Annual Report on Statistics of Land Administration in the Taiwan Provinces, Volume 15, P. 3, edited and published May 1997 by The Land Administration Department, Taiwan Provincial Government; and Facts Book of the Land Reform Program in the Early Years after the Recovery of Taiwan, P. 282 et seq., edited and published June 1992 by the Ministry of Interior). Consequently, on March 20, 1947, the government issued the decree No. Chung-Tze-10050 to set a limit on the farmland rent to be paid by all tenant farmers at the rate of 37.5 percent of the yield of the principal product. This executive order, however, was not fully enforced by governments at all levels due to the lack of specific provisions in the Land Law, with the result that the decree turned out to be virtually meaningless. On April 14, 1949, the Regulations on the Lease of Private Farmland in the Taiwan Provinces were promulgated, followed by the issue of the Enforcement Rules of the Regulations on the Lease of Private Farmland in the Taiwan Provinces, Instructions on the Recordation of Private Farmland Lease Contracts in the Taiwan Provinces, the Organic Rules of the Commission for the Supervision over the Implementation of the 37.5 Percent Farmland Rent Reduction Program in the Taiwan Provinces, and the Organic Rules of the Commissions for Supervision over the Implementation of the 37.5 Percent Farmland Rent Reduction Program in the Counties and Cities of the Taiwan Provinces to carry through the 37.5% rent reduction policy by way of overall review of all lease agreements, demanding corrective actions with respect to collection of rent in violation of agreements and illegal cancellation of leases, and assistance in the signing of new contracts in place of and supplementary to existing contracts. Despite such efforts, some landlords had forcibly terminated leases by using the excuse of decreased earnings after reduction of rent. Because the resulting litigations were found difficult to resolve by courts of justice invoking provisions of the Land Law and other relevant laws and regulations, the Statute for the Reduction of Farmland Rent to 37.5 Percent was enacted and promulgated on June 7, 1951, to provide a legal basis for resolving such disputes, so as to uphold the initial success achieved in the implementation of the 37.5% rent reduction program. (See Legislative Yuan Gazette, Vols. 2 & 3 combined edition, p. 40 et seq., published September 30, 1951). To protect the interest of tenant farmers, the Rent Reduction Statute, which has rebuilt the agricultural industrial relationship between lessors and lessees of farmland by way of setting a limit on the rent and stringent restrictive conditions on which lessors of farmland may terminate the lease and demand return of the land, for the purpose of reasonable distribution of agricultural resources and laying a foundation for the development of the national economy, is appropriate in terms of its legislative purposes. While no interim clauses are incorporated into the Statute to protect the vested contractual interest of lessor, the restrictions imposed thereby on the lessor’s freedom of contract and property right are not beyond the expectation of lessors as the government policy to reduce farm rent had been in progress for several years before the Rent Reduction Statute was enacted, allowing lessors the opportunity to familiarize themselves with the rent reduction mechanism, and the very purpose of the Statute is to put into practice the constitutional provisions requiring the State to assist land-holding farmers in the distribution and readjustment of land. Hence the Statute, considering the special historical background and the distinct significance to the public interest attainable through reasonable distribution of agricultural resources, is not in conflict with the constitutional principle of reliance protection.
The Rent Reduction Statute, Article 5, the first sentence, which provides for a minimum period of lease to prevent the lessor from arbitrarily repossessing his land, is designed to encourage the lessee to engage in activities for improvements of the land and agricultural production techniques for the purpose of increasing the productivity of farmland and developing the lessee’s ability to operate and acquire land. Article 6, Paragraph 1, requiring that all lease agreements must be made in writing and recorded upon application to be submitted jointly by both the lessor and the lessee is intended to prevent disputes often arising out of oral agreements. The provision of Article 16, Paragraph 1, prohibiting sub-lease of farmland, aims to further maintain a stabilized relationship of lease, where the lessee will keep his promise to engage in farming, so that the farmland will not become a tool with which intermediate exploitation may be undertaken. The statutory reasons for termination of lease specified by Article 17, Paragraph 1, Subparagraph 1, of the Statute, applicable only to the circumstance where the lessee dies during the term of the lease, leaving no heir to continue farming the land, make it possible for the lessor to repossess the land if the lessee’s heir is incapable of self-tilling, and thus allow the option for the lessors to repossess the land for farming by themselves. Such provisions are helpful in carrying out the nation’s fundamental policies designed to assist land-holding farmers and to improve the livelihood of farmers. While the freedom of contract and the property right of lessors are subject to certain restraints, the approach is necessary and appropriate in light of the purpose of the legislation, and the interest of both lessors and lessees is likewise being ensured. The provisions are thus consistent with the Constitution insofar as the principle of proportionality under Article 23, the safeguard of the freedom of contract under Article 22, the property right under Article 15 and the equality right under Article 7 are concerned.
The Rent Reduction Statute provides in Article 19, Paragraph 1, Subparagraph 1, that a lessor incapable of self-tilling is not entitled to demand return of his land, whereby a lessee capable of farming will not be caught in the situation of losing the land to work on. It reflects the essential means to put into practice the provision of Article 143, Paragraph 4, for assisting land-holding farmers. However, to deal with the situation of worldwide agricultural competition and encourage the development of agricultural technologies and new diversified industrial patterns, the meaning of the expression “self-tilling by the lessor” therein is not limited to the situation of personal farming by manual labor in light of the purpose of Article 146 of the Constitution and Article 10, Paragraph 1, of the Amendments to the Constitution for the industrialization and modernization of agriculture. Within the meaning is also included self-farming or contracting someone else to do the farming by way of agricultural technology and in the manner of a businesslike operation. Under the Rent Reduction Statute, Article 19, Paragraph 1, Subparagraph 2, the lessor has no right to repossess the land for his own cultivation if the total income of the lessor is sufficient to support his family. This provision has virtually made the lease renewal for an indefinite term of duration, thereby weakening the desire of the lessee to make himself a land-holding farmer and representing a departure from the purpose of Article 143, Paragraph 4, to support land-holding farmers. However, in consequence of the amendment made by the Legislature on December 23, 1983, by adding to the article the second paragraph allowing the lessor to repossess for his own cultivation the farmland situated in the same sector as or in a sector adjacent to his self-cultivated land for the purpose of expanding the business of his family farm, the restraint on the property right of lessors is thus eased and thereby the lease of farmland would not deprive the lessor of his ownership of the land. Subparagraph 3 of the same article, which prohibits the lessor from repossessing his land if the lessee will be deprived of the subsistence for his family, is an essential measure to protect the fundamental means of livelihood of farmland lessees for carrying out the policy to improve farmers’ livelihood as declared in Article 153, Paragraph 1, of the Constitution; and if the lessor is likewise devoid of the means to support his family s/he may request that the farmland lease and tenancy committee mediate, so that the actual needs of both lessor and lessee can be ensured. In light of the policies to assist land-holding farmers under Article 143, Paragraph 4, of the Constitution, to promote the industrialization and modernization of agriculture under Article 146 of the Constitution and Article 10, Paragraph 1, of the Amendments to the Constitution, and to improve the livelihood of farmers under Article 153, Paragraph 1, of the Constitution, the provisions of the three subparagraphs cited above, placing constraint on ownership to farmland by setting forth restrictive conditions on which lessors of farmland may repossess the land, appear to be necessary and are found consistent with the principle of proportionality under Article 23 of the Constitution and the provision of Article 15 of the Constitution with respect to the protection of the property right of the people. As regards the question of whether or not the lessor may lease the repossessed farmland to another person, it is a question of application of law.
Article 17, Paragraph 2, Subparagraph 3, of the Rent Reduction Statute, as added thereto by amendment on December 23, 1983, whereby the lessor of a farmland that is classified as or changed into land for non-cultivation use before the expiration of the lease shall give the lessee a compensation equal to one-third of the remaining amount of the government-declared current land value after deducting therefrom the amount of land value increment tax payable therefor, is applicable only to such land that may continue to be utilized for its original purpose pending the time when such specified use begins under Article 83 of the Land Law. The period of continued use of the land under the Land Law represents an interim provision designed to protect the established legal status of the land user. Because the lease of the farmland has not yet expired, the land may of course be used continuously for its original purpose for a specific period of time. In such circumstance, if the lessor of the farmland desires to terminate the lease before the expiration of its term, the Rent Reduction Statute imposes upon him, by Article 17, Paragraph 2, Subparagraph 3, the obligation to give the lessee a compensation, in order to indemnify the lessee for the damage suffered as a result of loss of his right to the lease and to balance the jural relationship between them. The restraint so imposed on the ownership of the lessor to the farmland constitutes no contravention of the intention of Article 15 of the Constitution in protecting the property right. Nevertheless, the inflexible rule of compensation in one-third of the amount regardless of the actual circumstances must be reviewed and modified at the earliest possible date by the government agency concerned by taking into account factors such as the protection of the freedom of contract contemplated by Article 22 of the Constitution and changes in socio-economic conditions.
Under Article 19, Paragraph 3, of the Rent Reduction Statute as added thereto by amendment on December 23, 1983, the lessor who repossesses his farmland upon expiration of the lease for the purpose of expanding the operation of his family farm and enhancing the efficient utilization of the land shall, by mutatis mutandis application of Article 17, Paragraph 2, Subparagraph 3, of the Statute, give the lessee a compensation equal to one-third of the remaining amount of the land value declared by the government for the period during which the lease is terminated, after deducting therefrom the amount of land value increment tax payable therefor. But, the relationship of lease being automatically extinguished upon expiration of the lease, the imposition on the lessor of a further obligation to compensate the lessee constitutes an unnecessary burden on the farmland owner, which is similar by nature to a barrier set up to prevent the lessor from taking back his farmland, and is thus contrary to the legislative purpose of encouraging the expanded operation of family farms to promote the modernization of agriculture. A fortiori, to repossess the farmland after expiration of the lease, albeit for expansion of his family farm, the lessor must satisfy the requirement that he is capable of self-tilling and that the lessee is not deprived thereby of the subsistence for his family. Inasmuch as the lessee’s family is not devoid of means of livelihood, the requirement that the lessor must assume the further obligation to take care of the lessee’s livelihood can hardly be deemed reasonable and justifiable. Consequently, the above provision, whereby Article 17, Paragraph 2, Subparagraph 3, of the Statute is made applicable mutatis mutandis to require that compensation be given to the lessee as an additional condition on which the lessor may repossess his farmland, is imposing an undue restraint on the property right of the lessor of farmland and is inconsistent with the purpose for the development of agriculture as embodied in Article 146 of the Constitution and Article 10, Paragraph 1, of the Amendments to the Constitution. The provision is further in conflict with the principle of proportionality under Article 23 of the Constitution and the provision set forth in Article 15 of the Constitution for the protection of the property right of the people, and must therefore be rendered ineffective as of the date not later than the last day of the second year from the issuance of this Interpretation.
Article 20 of the Rent Reduction Statute provides that, if the lessee desires to renew the lease upon expiration thereof, the lessor is bound to renew the lease unless the lessor has a statutory reason to repossess the land. It limits the right of the lessee to have the lease renewed to the situation where the lessor is not legally permitted to repossess the farmland. In the situation where the lessor is not legally permitted to repossess the farmland, the provision to restrain the lessor’s freedom of contract and to impose on him the obligation to renew the lease is intended to prevent the lease and tenancy contract from falling into an uncertain condition, rather than imposing on the lessor an additional burden other than the situations where the lessor is prohibited from demanding return of the farmland, and is therefore consistent with the principle of proportionality under Article 23 of the Constitution and the provision set forth in Article 15 of the Constitution for the protection of the property right of the people.
' Translated by Raymond T. Chu.
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