談限制預售屋換約轉售之合理性與適用範圍界限

The Rationality and Scope of Prohibiting the Resale of Purchase Agreement of Pre-sale Houses

新修訂之平均地權條例加大打炒房力道，限制預售屋或新建成屋之買受人為買賣契約之轉售或讓與，並課處行政罰鍰，蓋因這類買受人為賺取差價，於簽約後加價為換約轉售，哄抬房屋價格，引發社會對高房價之恐慌。雖內政部認為修法限制換約轉售，都是基於防杜炒作、維護市場秩序等公共利益而進行適度管制，具有正當性及必要性。但因是對契約自由和財產權的嚴重限制，在比例原則的嚴格檢視下，不無有違憲疑慮。在此想法下，應將現行條文的規範對象進行目的性限縮，朝合目的性及合憲性的解釋方向，因此，只有具套利性質之轉售或讓與，才符合管制目的，不具套利性質的交易安排，不宜視為違法，而相關的例外核准規定，亦應緊扣立法目的而為適用，但相關子法緊扣立法理由而將之限於非自願轉讓的少數情況，亦屬對財產權及契約自由的過度限制，而有待檢驗。

The newly revised Equalization of Land Rights Act intensifies the crackdown on the speculation of the real estate, prohibits the resale or transfer of pre-sale houses or newly available houses, and imposes administrative fines because such transactions make arbitrage. The buyers resell the purchase agreements by increasing the prices in order to take advantage of the price difference, which may drive up the price of the house and trigger social concern about high housing prices. The Ministry of the Interior believes that the amendment to the said Act to restrict contract transfer and resale is appropriate and necessary based on the public interests of preventing speculation and maintaining market order, however, it severely restricts freedom of contract and property rights. As such, it is doubtful whether the amendment of the said Act is constitutional under the strict scrutiny of the principle of proportionality. In line with this thought, the author contends that the prohibited objects of the current provisions should be purposefully limited and interpreted in the consideration of purposiveness and constitutionality. Therefore, only those resales or transfers with the nature of arbitrage meet the purpose of control and shall be prohibited. The transactions which do not have the intention to arbitrage should not be regarded as illegal per se. Likewise, the relevant exception provisions should also be applied closely based on the legislative purpose. However, the relevant sub-regulations allowing only a few exceptional cases of involuntary transfers according to the legislative intent could infringe the protection of property rights and constitute the unnecessary restrictions on freedom of contract, which shall be further inspected.