平均地權條例第47條之4禁止預售屋轉售之合憲性探討

Constitutional Analysis of the“Conditional Prohibition on the Transfer or Resale of Purchase Orders for Pre-sold Houses and Newly Constructed Houses”in Article 47-4 of the Equalization of Land Rights Act, Implemented in 2023

近年來因房價不斷飆漲引發政府是否能實現居住正義之質疑，政府因應民意提出系列打房措施，並在2023年1月修正平均地權條例，於新法第47條之4規定禁止預售屋及新成屋之換約轉售，違反者最高可處300萬之罰鍰，同時要求預售屋解約亦須30日內申報登錄。
本次修法理由在於遏止預售屋之炒作，使市場回歸理性交易與合理交易價格。惟新法通過後反應兩極，支持者認為國內不動產之炒作嚴重，已乖離市場行情，需有更嚴厲之法律來遏止「預售屋之炒作」，反對者則認為預售屋及新成屋之轉讓應讓其回歸市場機制，不需要過多之政策干預，並認為已實施之房地合一及兩年內轉售高額稅率45%已足以遏止房價之攀升，且主張政府應優先使用租稅及金融手段等政策工具，而非跳過政策工具而逕以禁止交易之終極手段來介入人民之私法自治範圍。
以上支持與反對之論點各有其依據，本文將從合憲性角度來檢視2023年新實施之平均地權條例新法第47條之4，該條文中有關「禁止人民就預售（及成屋）之不動產買賣契約」再轉售予第三人，對憲法保障之人民之財產權及私法自治之自由，依法理來探討新法之合憲性，以供日後修法之參考。

In recent years, due to the continuous surge in housing prices, it has raised doubts about whether the government can achieve housing justice. In response to public opinion, the government has proposed a series of measures to curb speculation in the housing market. In January 2023, the government amended the Equalization of Land Rights Act and introduced Article 47-4, which prohibits the resale of pre-sold houses and newly constructed houses through contract assignment. Violators could face fines of up to three million NTD. And according to the article 47-4, the cancellation of pre-sold houses must be reported and registered within 30 days.
The rationale behind this amendment is to curb speculative activities in the pre-sold housing market and restore rational and fair transaction prices. However, the reactions to the new law have been mixed. Supporters argue that rampant speculation in the domestic real estate market has deviated from market trends and requires stricter legislation to curb the“speculation on pre-sold houses.”Opponents, on the other hand, believe that the transfer of pre-sold and newly completed houses should be allowed to return to market mechanisms, without excessive policy intervention. They also contend that measures already in place, such as the integration of property and land taxes and the high 45% tax rate on resale within two years, are sufficient to control the rise in housing prices. They advocate for the government to prioritize the use of tax and financial tools, rather than bypassing these options and resorting to the ultimate measure of prohibiting transactions, which would intrude upon private law autonomy.
Both the supporting and opposing arguments have their justifications. This paper will examine the constitutionality of Article 47-4 of the Equalization of Land Rights Act implemented in 2023, which pertains to the“prohibition of property sales contracts (pre-sold and newly constructed houses) being resold to third parties.”The examination will be conducted from a constitutional perspective, considering the protection of people’s property rights and the freedom of private law autonomy guaranteed by the Constitution. This analysis aims to provide insights for future legislative amendments.