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|Title: ||The Jurisdiction Dispute Regarding National Land Leases: Focusing on the Judgment of Taichung High Administrative Court 104 Su 53 (2015)|
國有土地出租爭議之審判權歸屬――以台中高等行政法院104 年度訴字第53 號判決出發
National Land Leases;Non-Public Property;the Dual System of Litigation, Exercise of Public Authority;Private Economic Activities;the Two-Stage Theory;J.Y. Interpretation NO.695;Public Property
|Issue Date: ||2018-03-29 16:20:13 (UTC+8)|
Under current Taiwan administration regulations and the legal system concerning national property, aside from office use, public use and used by stateowned enterprise, it’s plausible to lease or sell to private sectors, constituting legal relationships of leasing and selling national property. The nature of these legal relationships whether they should be public or non-public determines which court has the jurisdiction to resolve disputes. As to the matter, relevant Judicial Yuan Interpretations, judgments issued by administration and ordinary courts have shown their opinions in significant differences, which could be generalized into two concepts, “public interest model” and “property right model”. Nonetheless, since contemporary administrative actions are to achieve the public interest, despite of public or non-public measure, the principle of public interest should not be the proper standard in determining the nature of disputes. Furthermore, the State is not permanently the property owner to simply obtain profits from the fiscal management in the national land lease contract. When the State action aims for Leistungsverwaltung or advancing administrative execution, the State should have the discretionary power to choose administrative or private contract as to consti-tute the legal relationship in national land leases. Unless it’s specified in law, since the one granting and signing the national land lease contract is done by the same regulatory agency, to simplify the legal relationship, this article emphasizes that the twostage theory should not be employed as to avoid sepa-rating the process into two different phases. Even if the granting and signing lease contract are integral and considered as private contract, under the public property reg-ulatory scheme, the freedom of contract shall not be applied without exceptions. In other words, the public law should have binding force directly or indirectly, which the courts should also take into consideration in delivering judgments.
|Relation: ||興大法學, No.19, pp.157-200|
|Data Type: ||article|
|Appears in Collections:||[法律學系] 期刊論文|
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