自辦市地重劃法規合憲性問題之探討

市地重劃係依照都市計畫所規劃之內容，將一定範圍內之土地重新交換調整，並由土地所有權人共同負擔公共設施用地及重劃費用，以興建道路、公園等公共設施，使重劃後地主分配到的每一筆土地都成為形狀方整，立即可供建築使用的一種綜合性土地改良措施。
平均地權條例是市地重劃之法律依據，內政部並訂有獎勵自辦市地重劃辦法，作為辦理自辦重劃之依據，已有相當之歲月。由於法規內容之關係，實務上偏向將自辦重劃之法律性質視為私法關係，儘管有不同的聲音。
本文參考德國憲法上之功能保留原則，限制國家之公權力原則上僅能由機關依法任命之公務員行使，不得由民間私人行使，例外情形須滿足法律的嚴格要求、評估以及監督，才容許行政委託。本文認為以我國現有的行政院的行政命令（按：係指「行政院及所屬各機關學校臨時人員進用及運用要點」）出發，作為法治國家，主張接受功能保留原則成為我國憲政的一環，填補憲法上之漏洞，不僅有助於憲法之續造與憲政之發展，並可矯正現有自辦市地重劃辦法之錯誤。根據功能保留原則，本研究發現自辦市地重劃的法律性質應該是行政委託才正確，不是私法自治、私權契約關係，就此而言，已構成違反功能保留原則；退一步言，縱使是私法關係，現行規定也有諸多違反體系正義平等原則之處。

Urban land consolidation (a.k.a.urban land readjustment) refers to the re-exchange and adjustment of land within a certain area in accordance with the planning content of the urban plan, and the land owners proportionately bear the cost of building public facilities, such as roads, parks etc., and urban land consolidation. This land improvement measure to make every parcel of land allocated to a landowner after rezoning becomes square and immediately available for building use.
The Equalization of Land Rights Act is the legal basis for urban land consolidation. The Ministry of the Interior has also formulate the regulations governing matters of the urban land consolidation, which has been used as the basis for self-implemented urban land consolidation for quite a long time. Due to the content of regulations, in practice, the legal nature of self-implemented urban land consolidation is tended to be regarded as a private law relationship, although there are different opinions.
Referring to the functional reservations in the German Constitution, in principle, which restricts the public power of the state can only be exercised by civil servants appointed by the agency in accordance with the law, and cannot be transferred and delegated to private individuals. Such exceptions must meet the strict requirements, evaluation and supervision of the law, then the so-called Administrative delegation is first allowed. This article believes that starting from the existing administrative orders of the Executive Yuan, our country, as a country governed by the rule of law, accepts the principle of functional reservation as a part of our constitutionalismus. It will not only help the growth of the constitution and the development of constitutionalism, but also correct the existing regulations regarding self-administration urban land consolidation. According to the principle of function reservation, this study found that the legal nature of the self- implemented urban land consolidation should be an administrative delegation, not a private law autonomy or private contract relationship. In this regard, it has constituted a violation of the function reservation principle; to say the least, even in private law relations, the current regulations also have many violations of system justice, making them potentially unconstitutional.