土地面積溢登的效力與買受人的損害

The Effect of the Registered Land Area Which is More than Reality and the Damage to a Purchaser

土地面積溢登的情形常不易發現，買受人向地政機關請求賠償常面臨消滅時效問題，此涉及土地面積溢登的效力與買受人的損害。本文兼採結果導向的思維方式，並提出以下見解：在土地面積溢登且地號與地籍線無誤的情形，關於登記的行政處分效力，視情形為全部無效或一部無效。「以登記的行政處分效力及登記公示力、登記推定力、登記公信力為由，而認為更正登記之前，於法律上，土地所有權人仍按登記面積所有其權利」的見解，本文難以贊同。溢登面積致買受人溢付價金，是純粹經濟上損失，為土地法第68條或國家賠償法第2條第2項規定的損害，而得請求賠償。買受人於更正登記之前亦得依上開規定請求賠償，以「被害人有知悉損害的可能之時」起算國家賠償法第8條第1項後段的5年時效期間。

It is often hard to discover the registered land area which is more than reality, and a purchaser claiming compensation to the land office often faces the problem of extinctive prescription. This issue involves the effect of the registered land area which is more than reality and the damage to a purchaser. This article adopts the result-oriented mode of thinking partially, and puts forward the following insights: When the registered area is more than reality and the plot number and the cadastral line are correct, the effect of administrative disposition of the registration is either void in its entirety or partly void depending on circumstances. This article finds it difficult to agree with the view that“based on the effect of administrative disposition of the registration, the effect of publicity of the registration, the effect of assumption of the registration, and the effect of indefeasibility of the registration, the land owner still legally owns his rights according to the registered area before the registration is corrected”. Overpayment of the price by a purchaser due to the registered area which is more than reality is pure economic loss. It is the damage under Article 68 of the Land Act or the second paragraph of Article 2 of the State Compensation Act. Thus, the purchaser has a right to claim compensation. A purchaser may also claim compensation in accordance with the said provisions before the registration is corrected; the time when there is a possibility for the person injured to be aware of his damage is the commencement of the extinctive prescription (5 years) of a claim according to the second sentence of the first paragraph of Article 8 of the State Compensation Act.