我國水源保護與農地使用受限損失補償之研究

A Study on the Compensation System for Restricted Use of Farmland in Water Resource Protection Areas in Taiwan

隨著我國農業發展與環境保護政策之轉變，農地資源之使用與分派受到莫大的衝擊，其中，如何解決農地使用限制與損失補償問題，便成為朝野關心之課題，本文嘗試以德國之水源保護區為探討對象，分析其農地使用限制損失補償制度之內容，由分析得知：德國政府首先從「法令」觀點分析農地使用受限之意涵，以作為補償制度設計之依據，對於農地使用受限所引發之損失補償，係以「社會公平正義」之觀點來處理，再透過法令規定、判例與釋義等方式界定了損失補償之「時機」與「額度」，接著，在相關措施之輔助下，規範了補償額度之「估算程序」，以提高估算結果之客觀性，筆者由實務訪查得知此一補償制度甚具可行性，對我國應具有諸多參考之處，因此乃據以探討我國現行水源保種與農地使用限制損失補償制度之內容，經由分析得知：在法令、行政組織與民眾參與方面仍存有諸多缺失，首先在「法令」方面：對農地使用限制之「內涵」、「性質」、與補償額度之「估算程序」未予以明確規範與界定，對補償之「對象」亦有不同之規定；在行政組織方面：對補償額度估算與爭議案件處理尚缺乏專責機關，相關單位間之聯繫與協調亦嫌不足，在民眾參與方面：尤其對於水源保護區劃設過程之參與管道及程度亦有不足，主管機關對區內權利相關人之意見亦未予以合理尊重，致引發爭議而影響水源保護區之推動。 In line with transforming of agricultural development and environmental protection policy, our current use and allocation strategy for farmland resources has met a big challenge. Meanwhile, it becomes an important task for the 'Council of Agriculture' to handle the compensation issue of restricting the use of farmland in water resource protection areas. Therefore, this article is attempt to analyze this issue based on the German experience. German government defined the content of use restriction of farmland from the viewpoint of 'law and regulation' and designed a reasonable compensation system for the loss in which 'timing', 'object' and 'quantity' of loss were clearly defined. In addition, the appraisal procedure of loss is also objective. It is observable that the German experience is valuable for our government. Therefore, our current compensation system should be reviewed from the viewpoint mentioned above. The issue of compensation system in Taiwan include: there is no clear definition regarding 'content' of the use restriction of farmland and 'appraisal procedure' of the loss, the coordination between relevant authorities and the participation of fanners by the planning procedure of water resource protection areas is also problematic, etc. As a result, the relationship between authorities and fanners (regulators) gets conflicting and affects the implementation of the water resource protection policy.

In line with transforming of agricultural development and environmental protection policy, our current use and allocation strategy for farmland resources has met a big challenge. Meanwhile, it becomes an important task for the 'Council of Agriculture' to handle the compensation issue of restricting the use of farmland in water resource protection areas. Therefore, this article is attempt to analyze this issue based on the German experience. German government defined the content of use restriction of farmland from the viewpoint of 'law and regulation' and designed a reasonable compensation system for the loss in which 'timing', 'object' and 'quantity' of loss were clearly defined. In addition, the appraisal procedure of loss is also objective. It is observable that the German experience is valuable for our government. Therefore, our current compensation system should be reviewed from the viewpoint mentioned above. The issue of compensation system in Taiwan include: there is no clear definition regarding 'content' of the use restriction of farmland and 'appraisal procedure' of the loss, the coordination between relevant authorities and the participation of fanners by the planning procedure of water resource protection areas is also problematic, etc. As a result, the relationship between authorities and fanners (regulators) gets conflicting and affects the implementation of the water resource protection policy.