非原住民借名承買原住民保留地之問題研究

Analysis of the Registration of the Non-Indigen as the Transferee in the Name of the Indigen in a Contract for the Transfer of Indigenous Reserve

基於原住民之保護，原住民保留地依法原則上僅得登記為原住民之所有，實務上卻有非原住民以原住民保留地為交易標的之契約，依民法第71條之規定而當然無效，或依民法第246條之規定決定其效力之爭議。若依民法第246條規定決定交易行為效力時，即有脫法行為規劃之空間。本文採不同理由，但認同最高法院民事大法庭108年度台上大字第1636號裁定之結論，出賣人與買受人之非原住民約定，將依契約而得取得之標的，登記為以借名登記之出名人原住民所有，彼此若同時設定地上權予該非原住民之買受人時，則整體交易行為屬迂迴違反民法第71條本文規定，當然無效，而契約當事人間對原已交付之標的物即須負回復原狀之義務。意即買受人須返還無權占有物予出賣人及塗銷地上權之登記，出名人應塗銷所有權之移轉登記，而出賣人對於借名人之費用支出，依其性質及規定，負償還之責任。此外，若借名登記人將登記在自己名義之原住民保留地交易、移轉登記於第三人時，當然也有登記絕對效力規定之適用。

In order to protect the indigenous people, the indigenous reserve land can only be owned by the indigenous people in accordance with the law. In practice, however, there are contracts between non-indigenous people and indigenous people concerning indigenous reserve land, which are of course invalid according to Article 71 of the Civil Law. Disputes over the validity of such contracts shall be determined in accordance with Article 246 of the Civil Code, which may be an opportunity for circumvention of the law.
For different reasons, this article agrees with the conclusion of Judgment No 1636 of the Civil Court of the Supreme Court in 2019, which held that where a contract provides that the non-indigenous person will be registered in the name of the indigenous person, and the subject matter acquired in accordance with the contract will be registered as being owned by the indigenous person of the borrower, and superficial rights are given the non-indigenous person at the same time, the overall transaction would be a roundabout violation of Article 71 of the Civil Code. Accordingly, the buyer would have no right to possess the property, and must return the property to the seller. The buyer should also cancel the registration of the transfer of ownership, while the seller shall be responsible for any expenses incurred by the lender.
Additionally, the normative effect of the registration would apply if the registrant transfers the indigenous reserve land registered in his/her name to a third party.