從憲法生存權觀點論──平均地權條例第11條耕地徵收補償

Discussing the Issue of Farmland Expropriation Compensation-Article 11 of the Equalization of Land Rights Act--From the Viewpoint of the Constitutional Right of Subsistence

平均地權條例第11條第1項規定，依法徵收出租耕地，由土地所有權人，以所得之補償地價，扣除土地增值稅後餘額之三分之一，補償耕地承租人。其立法目的為貫徹保護佃農政策，免於承租人賴以為生的耕地被徵收而喪失其生活憑藉。然出租人之耕地被徵收，其財產權已蒙受特別犧牲，何以還須為貴撤保護佃農而給予補償生活憑藉？此項規定究竟補償耕地承租人何損失？是耕地租賃權損失？抑或喪失賴以為生之耕地使用收益之權利所產生之生存權損失？倘為補償耕地承租人之生存權損失，則該補償性質是否為國家責任而為土地徵收補償之範圍？倘屬國家責任，則將此責任轉嫁給耕地出租人是否妥當？本研究先分析該補償性質，再探討該補償性質是否為憲法保障生存權而為土地徵收補償範圍，最後檢驗由出租人代替國家補償承租人之妥當性。本研究目的在於，釐清承租人賴以為生之耕地，因被徵收導致喪失生活憑藉，究竟誰應給予補償，以供中央主管機關修法之參考。憲法生存權保障，係為使人民維持其最低度合於人性尊嚴的生活；而財產權保障，則為使人民財產權不售國家諮意侵害，故國家徵收土地之結果，導致人民喪失生活憑藉，對於其基本生活之照顧，應屬國家責任。研究結果認為，此將耕地承租人之生存權損失，責由出租人負擔，已侵害出租人財產權之核心本質，而與憲法財產權保障不符。建議將承租人賴以為生的耕地因被徵收而導致喪失生活憑藉之損失，列為土地徵收條例損失補償之範圍。 Item 1 of Article 11 of the Equalization of Land Rights Act stipulates that, in an expropriation of tenanted farmland, the landowner shall compensate the tenant 1/3 of the land expropriation compensation after deducting the land value increment tax. The objective of this legislation is to substantiate the protection policies for tenant farmers and ensure that tenants do not lose the mean(s) to livelihood after the farmlands they depend on are expropriated. However, since the farmlands of the lessors have been expropriated and their property rights have been sacrificed under special terms, why should special compensation for the livelihood of the tenants still be enforced? What loss of the tenant is actually compensated in this legal regulation? Is it a loss of the farmland tenancy right, or the loss of the right to subsistence due to loss of the right to the proceeds gained from use of the farmland they depend their livelihood on? If it is a compensation to the loss of the tenant's right to subsistence, is it a liability of the nation, which falls in the scope of land expropriation compensation? If it is deemed as a liability of the nation, is it appropriate to pass this liability over to the farmland lessor? This research conducts an analysis on the nature of the compensation before exploring whether this compensation falls into the scope of land expropriation compensation for protection of the right to subsistence and then examines the appropriateness of assigning the liability of compensation to the lessor in replacement for the administrative body of the nation. The objective of this research aims to clarify who should be compensating the farmland tenants for the loss of farmland they depend on for livelihood, and the results of this discussion will provide a reference for the central administrative agencies in the process of legislation. The constitutional right to subsistence protects people's right to maintain a life of the minimum reasonable level of dignity and people's property rights from willful infringement of the state. Therefore, the results of land expropriation made by the state that cause people to lose the mean(s) to livelihood, as well as the requirement for basic care incurred from such expropriation, should be a liability of the state. This research shows that legislation requiring the lessor to take on the liability for the loss of the tenant's right to subsistence has infringed the lessor's property right and thus in contradiction to the lessor's constitutional property right. Therefore, this research recommends that the tenant's loss of the mean(s) to livelihood should be covered in the scope of land expropriation compensation.

Item 1 of Article 11 of the Equalization of Land Rights Act stipulates that, in an expropriation of tenanted farmland, the landowner shall compensate the tenant 1/3 of the land expropriation compensation after deducting the land value increment tax. The objective of this legislation is to substantiate the protection policies for tenant farmers and ensure that tenants do not lose the mean(s) to livelihood after the farmlands they depend on are expropriated. However, since the farmlands of the lessors have been expropriated and their property rights have been sacrificed under special terms, why should special compensation for the livelihood of the tenants still be enforced? What loss of the tenant is actually compensated in this legal regulation? Is it a loss of the farmland tenancy right, or the loss of the right to subsistence due to loss of the right to the proceeds gained from use of the farmland they depend their livelihood on? If it is a compensation to the loss of the tenant's right to subsistence, is it a liability of the nation, which falls in the scope of land expropriation compensation? If it is deemed as a liability of the nation, is it appropriate to pass this liability over to the farmland lessor? This research conducts an analysis on the nature of the compensation before exploring whether this compensation falls into the scope of land expropriation compensation for protection of the right to subsistence and then examines the appropriateness of assigning the liability of compensation to the lessor in replacement for the administrative body of the nation. The objective of this research aims to clarify who should be compensating the farmland tenants for the loss of farmland they depend on for livelihood, and the results of this discussion will provide a reference for the central administrative agencies in the process of legislation. The constitutional right to subsistence protects people's right to maintain a life of the minimum reasonable level of dignity and people's property rights from willful infringement of the state. Therefore, the results of land expropriation made by the state that cause people to lose the mean(s) to livelihood, as well as the requirement for basic care incurred from such expropriation, should be a liability of the state. This research shows that legislation requiring the lessor to take on the liability for the loss of the tenant's right to subsistence has infringed the lessor's property right and thus in contradiction to the lessor's constitutional property right. Therefore, this research recommends that the tenant's loss of the mean(s) to livelihood should be covered in the scope of land expropriation compensation.