土地登記機關損害賠償責任探討

Discussion on Duty of Damages in Land Registration Office

土地法第68條第1項規定：「因登記錯誤、遺漏或虛偽致受損害者，由該地政機關負損害賠償責任。」乃國家賠償法之特別規定，實務見解並認為該條規定為無過失責任，惟無過失責任係因土地登記採實質審查制度，經審查後賦予公示性及公信力，為避免信賴登記之第三人遭受不測之損害而來。但現行土地登記實務對於審查方式的實情為形式審查，並不適合採取無過失責任，故宜合理地修正為過失責任較為妥適。另依該條規定，因登記錯誤遺漏或虛偽致受損害之真正權利人，僅得向地政機關請求賠償，所得請求賠償的範圍僅限於所受損害，並自客觀上得行使請求權時起，依國家賠償法所規定之期間計算損害賠償時效。但賠償義務人之地政機關可主張受害人有可歸責事由而免責。惟若採無過失責任，地政機關應僅得減輕賠償責任而非免責，至於所失利益部分，亦應列入請求賠償範圍，較為妥適。此外，對於地政機關內部登記人員而言，受害人不能逕向地政機關內部辦理該錯誤、遺漏或虛偽的土地登記案件的人員，請求侵權行為損害賠償，僅在登記人員對於登記錯誤等事項有重大過失者，地政機關於賠償後得向其求償，而以其所賠償金額撥歸登記儲金，雖已明顯減緩登記人員之賠償責任，但因地政機關預算不足、登記人員人力不足、工作負苛極大，求償範圍不宜過大，且應有「與有過失」之適用，並可以賠償基金為登記人員辦理地政責任保險，來轉嫁責任。另可透過公證制度或落實地政士簽證制度，由其負擔實施審查責任，藉此將損害賠償風險轉嫁，以減輕登記人員之賠償責任。 According to article 68 section 1 of the Land Act, “Where damage is sustained through error, omission, or fraud in registration, the competent Land Office shall be liable to pay compensation therefore”, which was the special provisions of State Compensation Law. In judicial opinions, the above article was liability without fault, which was formed because of the substantive review system of land registration system. Once passed the examination, the registration would be endowed with publicity and trust effect in order to avoid the third party who trusted the examined registration sustaining damages. However, the current land registration, in real practice, was formative review, which was inappropriate to take liability without fault. Therefore, it was appropriate to amend liability without fault into fault liability reasonably. Furthermore, the intended obligee, who sustained damages due to error, omission, or fraud in registration shall request for compensation simply from the competent Land Office. Besides, the compensation shall be limited to the injury actually suffered, and the calculation of prescription of damages shall have applied with periods enacted in State Compensation Law since the intended obligee was entitled to exercise his claims objectively. However, the compensation obligor, the competent Land Office, could disclaim the compensation by proving that the intended obligee was responsible for the cause of such damage. If the article was fault liability, the competent Land Office shall simply reduce the compensation, instead of releasing it. As for the interests which had been lost, it should be properly included in compensation, too. Moreover, the person injured was unable to directly claim tort damages to the registration officer, who made error, omission, or fraud in registration. Instead, the competent Land Office was entitled to request for compensation from registration officer who had gross negligence after compensating to the person injured. Although it was obviously a relief for registration officer that all sums shall be turned over to the Registration Fund, the insufficient budgets of the competent Land Office, manpower shortage, and large workload revealed that wide range of compensation request was unsuitable. With a view to transferring responsibilities, it should have the application of contributory negligence and insured liability insurance of the competent Land Office. What's more, implementing notary public system or attestation system of land administration agent, who was responsible for carrying out examination, was also able to transfer risk of damages to relieve the registration officer of their responsibilities of compensation.