| 摘要: | 土地徵收，係國家為公共需要或公共用途之目的，基於公權力之作用，強制取得私人土地，給予補償或賠償後消滅其所有權。為政府對於私人財產權之剝奪，因此通常被視為最後之手段，但徵收為世界先進民主國家視為法之例外原則，多採用賠償制度。
因大埔徵收案以及其他計畫徵收者，政府大幅地徵收私人土地，至紛爭四起，更有地主因此而自殺。憲法對財產權之保障在於表彰人權，但基於社會義務之負擔，於此，土地所有權可能在公益之目的下而被徵收，但應為最小之侵害。例如「土地徵收條例」，第3-1條是狹義比例原則；第3-2條為徵收土地應以公益目的與必要性為準據。
至於為何會加入大陸地區之徵收制度做比較，主要是大陸地區之徵收似乎是採用完全補償之補償方式，儘管其徵收之程序不符程序正當與公開公正原則，對於公共利益之目的性也似乎流於浮濫，但是最終之補償，從相當多之案例中大多數皆是屬於完全補償，甚至出現超額補償，例如山西稀土之農戶徵收補償，造成許多一夕成鉅富之特例，也是其後來修正徵收補償規定之成因，諸如先安置再拆遷等等優點也是值得研究及採行。
對於私有財產之公用徵收，所涵蓋之範圍甚廣，政府之任何行政作為，無論是否具公益徵收之意圖，都有可能因造成國人財產權之干預而應負賠償責任而非補償作為。本研究目的在提供政府徵收制度上若干建言，也提醒國人應知悉土地之徵收制度與救濟途徑，不過，本研究發現目前土地徵收之法規存在違憲性，應廢除土地徵收條例及土地法有關徵收部分專章，另訂新法，如「土地徵用賠償法」之類似名稱。
Land expropriation is the purpose of the state for public needs or public Interest. Based on the role of public power, it is mandatory to obtain of private land, giving compensation or recoupment after to eliminate ownership, and the deprivation of private property rights by the government are usually regarded as the last resort, It is also regarded as the exception principle of the law for the world's advanced democratic countries, and the recoupment system is adopted in there countries.
Because of the Tai Po land expropriation and other plan of land expropriation cases, the government has levied a large amount of private land, leading to disputes, and even have some landlords to committed suicide. The Constitution guarantees property rights by recognizing human rights, but based on the burden of social obligations, land ownership may be levied under the purpose of public welfare, but to do it must be the minimum damages. In this case, Saw the Land Acquisition Ordinance, Article 3-1 is the principle of narrow proportionality, Article 3-2 shall be based on the purpose and necessity of public interest for the acquisition of land.
As for the reason why China’s Land expropriation system was added for comparison, the main reason is that the expropriation process on the China’s government seems to be based on full compensation. Although its expropriation process is inconsistent with the principles of due process and openness, And the purpose of the public interest seems to be overused. However, the final compensation, from a considerable number of cases, is mostly full compensation or even excessive compensation. For example, Shanxi rare earth of land be expropriated for farmers' compensation, which has caused many exceptions to become huge wealth overnight. It is also the reason for the changes made to the provisions of the compensation policy. The point, Methods of such as resettlement before demolition are also worth studying and adopting.
Private property to be expropriated for the purpose of public interest, the scope of coverage is very wide. Any administrative action of the government, regardless of whether it has the intention of public welfare expropriation, may be liable for recoupment rather than compensation due to the intervention of the property rights to face the people. The purpose of this study is to provide some suggestions on the land expropriation system of the government, and also remind the people attention to understand the land expropriation system and relief channels.Butalso, this study found that the current land expropriation regulations are unconstitutional, and the Land Expropriation Law and special chapters of the Land Law on land expropriation should be abolished, and make a new law such as the "Land expropriation Compensation Law" should be similar. |
