土地法第34條之1第1項優先購買權之經濟分析

Economic analysis of Preferential right－Focus on Article 34-1 of the Land Act－

本文以法律經濟的觀點，針對現行土地法第34條之1第1項所採行的共有土地處分之優先購買權制度進行成本──效率分析，以「公平正義」和「經濟效率」為參考座標，分析現行制度的交易成本，並試圖設計出一套以符合「效率」與「正義」目標兼容之最適制度規則，重新思考訂定一套共有土地處分之優先購買權制度。研究結果發現，基於維護「公平正義」與「經濟效率」的觀點，本文認為應賦予不同意處分之少數共有人「財產法則」性質之優先購買權制度，即若依土地法第34條之1第1項處分共有土地全部時，此時優先購買權不宜類推適用該條第4項之「債權」性質的效力，而應要賦予其「物權」性質的效力，方得以有效地降低交易成本，以利於提昇經濟效率的同時，並能兼顧公平正義目標的財產權制度。 The thesis is based on the viewpoint of economic analysis of law, and aims at the Article 34-1 of the Land Act to introduce the system of preferential right of disposal of co-ownership land in order to proceed with the cost-benefit analysis. By means of the references of “justice”and“economic efficiency,”the text analyzes the transaction costs of current system and attempts to design a corresponding goal of economic efficiency and justice with the best appropriate rules to rethink subscribing a preferential right of the disposal of co-ownership land. As the research conclusion found, the article thinks it should confer the minorities the disapproving disposal with the system of preferential right of“property rules.”It is to depend on the first disposal of ownership in the Article 34-1 of the Land Act. In the meantime, the preferential right is inappropriate to analogize the effect of the“rights in personam,”but to confer the effect with the“rights in Rem”in order to decrease the transaction costs efficiently, to increase the economic efficiency and simultaneously to consult the system of property rights with the goal of justice.

The thesis is based on the viewpoint of economic analysis of law, and aims at the Article 34-1 of the Land Act to introduce the system of preferential right of disposal of co-ownership land in order to proceed with the cost-benefit analysis. By means of the references of “justice”and“economic efficiency,”the text analyzes the transaction costs of current system and attempts to design a corresponding goal of economic efficiency and justice with the best appropriate rules to rethink subscribing a preferential right of the disposal of co-ownership land. As the research conclusion found, the article thinks it should confer the minorities the disapproving disposal with the system of preferential right of“property rules.”It is to depend on the first disposal of ownership in the Article 34-1 of the Land Act. In the meantime, the preferential right is inappropriate to analogize the effect of the“rights in personam,”but to confer the effect with the“rights in Rem”in order to decrease the transaction costs efficiently, to increase the economic efficiency and simultaneously to consult the system of property rights with the goal of justice.