臺灣地籍圖重測調查指界法制之研究

Study on the Legal System of Boundary Investigation for Cadastral Map Resurvey in Taiwan

臺灣之地籍圖，乃係承襲自1903年日治時期所測製，經國民政府於1945年接收後延續使用迄今，為我國現今以圖籍記錄人民財產權範圍的唯一原始依據。由於日治「土地調查規則」與我國「土地法」，兩者規範遠隔40年之遙，但行政長官公署在光復初期，仍認為日治時期地籍調查與測量之程序與精度符合規定，故免予重辦地籍測量，並以局部改正之「修補」方式，一舉完成臺灣土地總登記。事實上，透過我國土地法典分析，雖然日治地籍測量外觀上之「程序」符合，但深入剖視後，其「實體」部分則完全無法見容於我國法制規範。因此，臺灣光復後未及數載，圖籍年邁病態即接踵浮現，非重新「改測」則無以回春。迨1975年間修正土地法，增訂地籍圖重測條款後，由於立法層面欠周，形成法制上的重大缺漏，不僅未能有效釐整地籍，反而因調查指界衍生出更進一步的爭議。但主管機關仍縱任30年而未正視，與憲法保障人民財產權之旨意相背逆。惟臺灣省尚有高達400萬筆以上之土地，猶待實施地籍圖重測，仍須面對上述法律疑義癥結；然因囿於篇幅所限，本文僅就實務上亟待突破之瓶頸，略舉土地法第46條之2第1項及地籍測量實施規則第194條之1加以深論，並歸結研究結果，提出相關條文之修法建議，為未來地籍圖重測，尋覓出賡續發展之經營脈絡。 The Cadastral Map of Taiwan was produced under the Japanese statutes period in 1903, which continued after 1945. It is the only original record that served as the reference for property rights. Although the “Land Investigation Regulations” during Japanese colonization and the “Land Laws” in our country are 40 years apart, at the early period after Taiwan Restoration, administrative officials still believed the cadastral investigation and survey procedures to be precise and consistent. Therefore, the laws were only partially amended and adopted in completing the general land registration in Taiwan. In fact, through analysis conducted on the land laws and regulations, it was found that although the Japanese cadastral survey was seemingly in conformity with standard “procedure”, in-depth observations showed that the “substance of the survey” was completely unfit for our purposes. Thus, shortly after the Taiwan Restoration, the cadastral map gradually became obsolete; thus a “new survey” was obviously needed. The Land Law was amended in 1975; after adding the Cadastral Map Re-Survey Act, inadequate legislation resulted in major legal loopholes. Not only did it fail to effectively implement the cadastre, but disputes also arose from boundary line surveys. Governmental agencies neglected this matter for 30 years, and this negligence was unconstitutional. In Taiwan Province, a total of over four million parcels of land need cadastral resurveying and will inevitably encounter legal questions and conflicts. However, due to time limit, this paper only deals with Sub-paragraph 1 of Paragraph 2 of Article 46 in Land Act and Paragraph 1 of Article 194 in Directions for Implementation of Cadastral Survey targeted at bottlenecks that urgently need to be broken through. Findings have been generalized, and suggestions for amendments to relative articles have also been proposed. It is expected that ideas for sustained development of cadastral resurveying will be discovered.