| dc.description.abstract | Current self-implemented urban land consolidation (SULC) cases are generally dominated by private companies. Because the private companies are for profits, the landowners are forced to participate in the consolidation, which always attracts controversy, both in theory and practice. In this regard, Interpretation No. 739 held, that the institutional frameworks for exercising SULC were inconsistent with the due process of law, including the organization of preparatory committees and the approving procedures of the proposed consolidation ranges and consolidation projects. In addition, the competence of preparatory committee violated the principle of legal reservation.
The Ministry of the Interior, in accordance with the holdings of Interpretation No.739, amended the Encouraging Consolidation Regulation. However, can Interpretation No.739 sufficiently protect the property right of landowners? Does the amendment legalize the infringement on the property right of landowners?
Self-implemented and public-implemented urban land consolidation procedures differ in form, but both involve compulsion in substance, infringing on landowner’s property rights. Therefore, current SULC system must be regarded as compulsory acquisition of land, and current SULC regulation is incompatible with the proportionality principle under Article 23 of the Constitution.
Urban land consolidation is a core governmental power, prohibited from whole privatization. SULC system leverages private investment for activities that have traditionally fallen within the public domain. However, government has not relinquished its responsibility and retains supervision with approving authority. Therefore, SULC procedures constitute so-called functional privatization, which shall be provided in principle by primary law. Nonetheless, the competent agency can make supplementary rules. The Encouraging Consolidation Regulation empowers the county (city) governments to approve the SULC, exceeding the scope of power granted by the enabling statute. The approving power is reserved by constitution for the central government. | en_US |