2015年12月4日 星期五

Regulations for military apartments need fixing

Wu Ching-chin 吳景欽

(Wu Ching-chin is an associate professor, chair of Aletheia University’s law department and director of Taiwan Forever Association)
(作者為真理大學法律系副教授兼系主任、永社理事)

Translated by Paul Cooper

TAIPEI TIMES / Editorials 2015.12.03
http://www.taipeitimes.com/News/editorials/archives/2015/12/03/2003633888/1

Chinese Nationalist Party (KMT) vice presidential candidate Jennifer Wang (王如玄) has found herself in hot water over her ownership of military apartments. Despite her insistence that everything is above board, the issue has got people’s backs up. Wang’s problem is that suspicions have arisen that something is not quite right, as there are regulations prohibiting the sale of military apartments within five years of their purchase.

To prevent real-estate speculation of military apartment buildings, Article 24, Paragraph 1 of the Act for Rebuilding Old Quarters for Military Dependents (國軍老舊眷村改建條例) says: “Other than the legal succession to the residence placement, the purchaser shall not sell, mortgage, give as a gift, or exchange the residence and base within five years upon the registration of the property right.”

So, why are these apartments still the subject of speculation?

This clause lacks the teeth of the now-abolished public housing act, which in item 3, paragraph 1 of article 21 said that “the government or competent authority is to retrieve the house and its land and enforce this provision should the owners violate the provisions of sale, pledge and mortgage, grant or exchange.”

This law’s removal denies authorities a potent weapon.

To avoid breaching the principle of the autonomy of private law, judicial authorities adopted a restricted-interpretation approach; they limited the application of the law to property rights, not to creditors’ rights. Therefore, as long as a person does not transfer the registration of ownership rights within the designated period, those involved can sign contracts to buy or sell and not risk breaking the law.

The problem comes when, during the five-year period in which the property registration cannot be transferred, the party wanting to buy the property has to take on the risk of the seller pulling out of the agreement or of transferring the property rights to another party instead. A prospective buyer would therefore find ways to offset the risk, such as with bonds, the use of public notaries or even seeking collateral, but all of these options are stretching the limits of the law. Even worse, should the Ministry of the Interior be seen to be formally recognizing the legitimacy of this legal loophole, the so-called five-year exclusion period essentially becomes meaningless and the policy, which was implemented to help provide low-cost housing options for veterans, is turned into one big temptation for those willing to take advantage of it.

There are some speculators out there who are not above taking advantage of the situation. They find themselves a gullible military dependent and find a way around the five-year rule. The government cannot turn a blind eye to this kind of behavior.

It is because of these practices that it might be necessary to lengthen the five-year restriction and maybe even consider the viability of prohibiting speculation on such property altogether. Given the snail’s pace at which laws are revised, when judges come to deal with these disputes, they should start from Article 1 of the Act for Rebuilding Old Quarters for Military Dependents, that is, take the military dependents’ property rights as the starting point and deny the buying or selling of residences in any shape or form of military apartments within the five-year period based on Article 72 of the Civil Code (民法), which says: “A juridical act which is against public policy or morals is void.”

If the judiciary continues to stick dogmatically to the literal meaning of the law, it will be helping people trying to get around the law and there will continue to be people who have devoted their lives to the service of their country crying themselves to sleep at night.