| 英文摘要 |
Whether the private arcade is the nature of public property or not should be discussed. Accordingly, there is a opinion that the private arcade is regarded as “private public property”, pending on further discussion and analysis. In no case that the private arcade is established als the public easement relationship, that is not so-called “de facto road” due to Judicial Yuan No. 400 Interpretation. What are there differences between the private arcade and public easement relationship (de facto road)? What is the public easement (de facto road)? Constitutes the private arcade the special sacrifice of property? The article 43 of the Building Act, the article 57 of Building Design and Construction Section in the Building Technology Rules, the article 9 of Urban Roads Act provide all expressly that arcade owners bear the negative flat obligation (non-rebuilt obligation) to maintain smooth way with adjacent ground. When the arcade owners cause not these arcades with adjacent ground to not be flat, it is a controversy that above those provisions leads to the positive flat obligation. However, in which theoretical basis lies the power of the government authorities to make arcade a flat surface? When the Arcade owners have selfst been reluctant to make the arcade a flat surface, whether the government burdens these flat fees or not? But, in order to ensure the interests of pedestrians, then the related costs through governmental made flat arcade should therefore born by the arcade owners? Furthermore, when the pedestrians have been injuried due to the deficiency of construction or manage on the arcade, it generates the State liability or private law responsibility for damage? It relates to the definition of “Public Facilities”, the deficiency of construction at the times of governmental flat works generates the State liability？State liability or private damage liability is based on the non-implementation of management and maintenance obligation? In order to clarify these many controversial issues, this article is worthy of exploring. |
