| 摘要: | 都市更新制度衍然成為解決都市發展老化之解藥，此一制度於我國自1998年制定、施行都市更新條例迄今21年，雖歷經9次修正，即便於2019年1月30日全盤修正，其所生之問題仍不在少數，都市更新進行過程中拆除老舊建築物，更新前後對原土地所有權人、原土地及建築物所有權人與其他權利人之權利變動甚鉅，而有本文之撰寫。然都市更新可由政府介入為之，亦可由私人自行辦理，本文則以民辦都更之委辦都更做為研究主軸。
都市更新條例為兼具公私法性質之法規範，本文以「法秩序一致性」之法學方法，檢視該條例相關規定之內部體系協調性，以及外部體系是否符合民法物權之基本原則，釐清權利變換與協議合建之概念及所有權人對於更新後分配土地及建築物「視為原有」之法律性質。繼之，檢視其所有權、用益物權與擔保物權之變動關係，並依民法上八種物權之共同原則，如物權客體特定原則，與其個別性質，提出都市更新條例對於所有權及他項權利之處理，應按其物權性質之差異而設有不同之規定，且就都市更新未來於擔保法制之發展提出建議。本文更以他山之石可以攻錯之比較法觀點，就日本都市再開發法對於權利變換所涉及之權利處理進行探究，如借地權、借家權，而得以做為我國未來都市更新條例修法之參考。然而都市更新之法律關係錯綜複雜，易致概念不清、論證錯誤，本文以示意圖之方式，將各種法律概念及權利變動關係予以呈現，對探討各項議題，頗有助益。
The urban renewal system has emerged as an antidote to solve the crisis of outdated urban development. The Urban Renewal Act has been implemented for 21 years in Taiwan since enacted in 1998. Even after amended nine times and revised comprehensively in January 30, 2019, the Act has incurred more than a few issues. The old buildings require demolishing in the process of urban renewal and the influence incurred from it on the change of property right of land owners, building owners, or other right holders are significant accordingly. This contributes to the writing of this thesis. While urban renewal can be carried out by either government or private agencies, this thesis concentrates mainly on com-missioned urban renewal in private urban renewal.
The Urban Renewal Act is characteristic of both private law and public law. Under the theory of “concordance of the legal order”, this thesis examines the internal coordination of related provisions within this act and the external coordination of the Act with the basic principles of rights in rem, clarifies the concept of rights transfer and co-construction, and ana-lyzes the legal nature of “constructive original ownership” of land and building for the owner after distribution through urban renewal. Further, the thesis explores the legal relationship of alteration to ownership, usufruct rights and collateral rights in urban renewal. In addition, according to the eight common principles of rights in rem in civil law, such as legality of rights in rem principle, and their respective legal nature, the thesis proposes that the Urban Renewal Act shall set forth the different rules to regulate ownership and other rights based on the discrepancy of their nature of rights in rem, and suggests the development of collateral rights in urban renewal in the future. As the proverb goes, stones from other hills may serve to polish the jade of this one. This thesis, accordingly, applies the view of comparative law to explore the arrangement for the rights while involving rights transfer, such as land lease right and building lease right, in Urban Redevelopment Act of Japan. It can be used as a reference for the amendment of Taiwan Urban Renewal Act in the future. However, the legal relationships in the Urban Renewal Act are complex. In addition, the concepts of them are apt to be vague and argumentations within them are inaccuracy. This thesis presents |
