論土地法第68條第1項損害賠償責任之歸責原則

The Imputation Principle of the Liability for Damages of Paragraph 1, Article 68 of the Land Act

因歸責原則之判斷主體為「責任主體」，判斷客體則為「系爭責任是否以責任主體之故意或過失為要件」，而土地法第68條第1項所定損害賠償責任，既然不以地政機關之故意或過失為要件，其歸責原則當為無過失責任。至於課予地政機關此項責任之歸責事由，係因地政機關具有藉由收取登記費，並提撥一定比例為登記儲金，且將之用以賠償被害人損害之方式，而分散風險之能力，故對於地政機關，得以分配正義為歸責事由而課予其無過失責任。又本項但書所定係地政機關之免責事由，故地政機關證明登記錯誤、遺漏或虛偽致生損害之原因，全可歸責於被害人者，不負賠償責任，惟地政機關若僅證明其原因有部分可歸責於被害人者，其雖不得舉證免責，但得依國家賠償法第5條準用民法第217條減輕或免除其賠償責任。

As the subject of the judgment of the Imputation Principle is judged by “liability subject”, and the object of the judgment of the Imputation Principle should thereby be judged by “whether the intention or negligence of the liability subject is an element of the liability for damages”. According to Article 68, Paragraph 1 of Land Act, the liability for damages doesn’t require the intention or negligence of the Land Office as an element of the liability. Following the premise, the Imputation Principle with regard to such liability here should be based on strict liability. In terms of the imputation cause of the liability for damages to determine if the Land Office should be the tortfeasor, strict liability based upon distributive justice should apply in this case as the Land Office can spread the risk by collecting registration fees, earmarking a certain percentage of the Registration Fund, which is according to Article 70, Paragraph 1 of the Land Act, and using the Registration Fund to compensate for the damages suffered by the injured persons. Respecting the exemption cause stipulated in the proviso of Article 68, Paragraph 1 of the Land Act, provided that the Land Office can prove that the cause of the error, omission, or fraud in registration can be entirely imputed to the injured persons, the Land Office is thereby not held legally responsible for the compensatory damages. However, providing that the Land Office can only prove that regarding the cause of the error, omission, or fraud in registration the injured persons are only liable for part of it, the liability for damage could be reduced or released based on Article 5 of the State Compensation Law in compliance mutatis mutandis with the provisions of Article 217 of the Civil Code by reason of contributory negligence of the injured person, which is raised by the Land Office notwithstanding its ineligibility for the exemption from liability.