For any dispute which arises from lawful users who do not apply for the inheritance registration of lands or building improvements, and which pertains to the pre-emptive right exercised pursuant to the first part of Article 73-1, Paragraph 3 of the Land Act with respect to an open auction conducted by the National Property Administration or any of its affiliated agencies, the lawsuit shall be tried by a general court (Taiwan)

2018.12.28
Jhen-Yi Chen

The Judicial Yuan rendered the Shi-773 Interpretation of December 28, 2018 (hereinafter, the “Interpretation”) to point out that for any dispute which arises from lawful users who do not apply for the inheritance registration of lands or building improvements, and which pertains to the pre-emptive right exercised pursuant to the first part of Article 73-1, Paragraph 3 of the Land Act with respect to an open auction conducted by the National Property Administration or any of its affiliated agencies, the lawsuit shall be tried by a general court.

This Interpretation deals with disputes concerning the first part of Article 73-1, Paragraph 3 of the Land Act, which provides: “A lawful user… shall have the pre-emptive right to the lands or building improvements auctioned under Paragraph 2 … with respect to their scope of use” (hereinafter, the “Requirement at Issue”). Since administrative courts have different opinions concerning their authority to accept lawsuits and the determination of whether the same laws and regulations apply to their adjudications, they have collectively applied for an interpretation.

According to the Interpretation, with respect to the criteria for the pre-emptive right under the Requirement at Issue, whether an individual who claims to be a lawful user indeed has a pre-emptive right for being a lawful user should be determined by considering if such individual has any justified source of right for the use under the law, e.g., any source of right for the legal possession under in rem law or any rental or borrowing relationship under the law of obligations. Such dispute pertains to the existence of any private law relationship, and the effect that arises merely aims to confirm if the person who claims a pre-emptive right may replace the bid winner as the buyer in a sales contract.  Therefore, an observation of the criteria for the pre-emptive right under the Requirement at Issue and the effect that arises indicates that a private law relationship is involved, and thus a determination should be made pursuant to relevant provisions of the Civil Code with no bearing on the exercise of government authority.  This shows that the lawsuit brought by a person who claims to enjoy a pre-emptive right to confirm the existence of the pre-emptive right pertains, in nature, to disputes arising from a private law relationship.  Therefore, a dispute which arises from lawful users who do not apply for the inheritance registration of lands or building improvements, and which pertains to the pre-emptive right with respect to an open auction conducted by the National Property Administration or any of its affiliated agencies is by nature a dispute arising from a private law relationship.  Therefore, the lawsuit shall be tried by a general court.