光復初期「會社」改為「公司」之歷程探源──兼評地籍清理條例第17-18條妥適性

The revolution of company in Taiwan has been reformed from the club in the Early Revival Period in Taiwan-The Appropriateness of Cadastral Clearance Act Article 17-18

關於以日據時期「會社」登記為所有權人之土地產權清理，地籍清理條例第17-18條之立法，援引經濟部民國56年12月08日（商34591號）函示：「日據時期會社組織，在臺灣光復後，若未於民國35年11月30日以前重新聲請公司登記，或改正登記者，應視為不存在，……」，規定這些土地產權，應直接更正登記為光復初期股東或出資人共有。本文梳理光復初期「會社」改為「公司」的歷程脈絡，發現上述經濟部函示意旨，與歷史事實未盡相符，並違反財產權限制之法律保留原則；地籍清理條例第17-18條之規定與憲法財產權保障意旨不符，不無違憲之慮。本文見解，若類推適用公司法規定，將「會社」賸餘財產──土地，依據清算程序，逐步處理，較符法理。 Regarding to the cleaning up of the land registered in the name of club in Japanese colonial period, Cadastral Clearance Article 17-18 have been built up and supported Ministry of Economic Affairs the declaratory statutes NO. 34591 on Dec. 8th, 1967. The declaration indicates that it is non-existence if the club in the Japanese colonial period had not re-registered or modified registration before Nov. 30th, 1946, as known as after the Recession of Taiwan. The regulation of property right should modification of registration regarding to the original right holders’ stock right or co-ownership of investment. This article carded the historical context of the club in the Japanese colonial period into the corporation in the Early Recession of Taiwan was contrary to the historical facts. Furthermore, it has violated the principle of legal reservation of the property restrictions. For this reason, the regulations of Cadastral Clearance Act Article 17 -18 does conflict the concept of Property Right Protection regards to the constitutions. Overall, it has been not submitted due to unconstitutional concern. The article emphasized that the application by analogy in Company Act make reliable as the legal principle if it follows the process of liquidation in the club in the Japanese period.

Regarding to the cleaning up of the land registered in the name of club in Japanese colonial period, Cadastral Clearance Article 17-18 have been built up and supported Ministry of Economic Affairs the declaratory statutes NO. 34591 on Dec. 8th, 1967. The declaration indicates that it is non-existence if the club in the Japanese colonial period had not re-registered or modified registration before Nov. 30th, 1946, as known as after the Recession of Taiwan. The regulation of property right should modification of registration regarding to the original right holders’ stock right or co-ownership of investment. This article carded the historical context of the club in the Japanese colonial period into the corporation in the Early Recession of Taiwan was contrary to the historical facts. Furthermore, it has violated the principle of legal reservation of the property restrictions. For this reason, the regulations of Cadastral Clearance Act Article 17 -18 does conflict the concept of Property Right Protection regards to the constitutions. Overall, it has been not submitted due to unconstitutional concern. The article emphasized that the application by analogy in Company Act make reliable as the legal principle if it follows the process of liquidation in the club in the Japanese period.