Please use this identifier to cite or link to this item:
http://tdr.lib.ntu.edu.tw/jspui/handle/123456789/73331
Title: | 違章建築作為侵權責任客體之研究 A Study on Unlawful Buildings as Objects of Tort Liability |
Authors: | Min-Yen Tai 戴旻諺 |
Advisor: | 吳從周 |
Keyword: | 違章建築,事實上處分權,所有權,債權,侵權責任, unlawful buildings,the right of de facto disposal,ownership,contractual right,tort liability, |
Publication Year : | 2019 |
Degree: | 碩士 |
Abstract: | 向來法院實務與學說多認為違章建築的事實上處分權、所有權與契約債權
均為侵權責任的客體,然而這些見解背後是否已有足夠的理論加以支持,仍有疑慮。 首先,基於法位階理論與憲法安定性的要求,本文認為違章建築的相關權利應屬憲法所保障的財產權客體,若欲限制之,應通過比例原則的審查。 接著,本文試圖釐清事實上處分權在侵權行為法中的定位。近年最高法院的判決將事實上處分權視為民法第184條第一項前段的權利,然而其論理並不充足,甚至造成事實上處分權究為物權抑或債權的難題。違章建築的事實上處分權是否真的具備受侵權行為法保護的正當性?這是本文的重點之一。 合法建築的所有權固應受侵權行為法保護,而違章建築是否亦然?本文從最根本的概念出發,探究違章建築是否應成立所有權。若私人無法移轉違章建築的所有權,則為何透過法院拍定程序卻能為之?此外,為何私人興建違章建築時應取得所有權?其理論基礎何在?本文認為,違章建築不應成立所有權,自無所有權受侵害而成立侵權責任的可能。 另外,以違章建築作為交易內容的契約能通過民法第71條與第72條的檢驗?臺灣法院實務將建築法解釋為取締規定,而肯認該契約效力。本文自建築法的立法目的與建築法抑制違章建築的實效觀察,認為應將建築法解釋為效力規定較為妥適,且允許破壞公共安全的違章建築流通於市面,實在難謂符合公共秩序的要求。 本文旨在重新檢視向來法院實務與學說見解的妥適性,希望透過本文拋磚 引玉,以期違章建築的問題獲得重視並健全臺灣人民的法意識。 In court practice and theory, the right of de facto disposal, ownership, and contractual right of unlawful buildings have always been objects of tort liability. However, there is doubt on whether or not these theories are supported by sufficient reasoning. Firstly, based on the hierarchy structure of the legal order and constitutional stability demands, this thesis argues that related rights of unlawful buildings belong to the object of property rights protected by the Constitution. If we were to restrict them, the restrictions should pass the review of proportionality. Furthermore, this thesis attempts to clarify the role of the right of de facto disposal in tort law. In recent years, the Taiwanese Supreme Court decision considered the right of de facto disposal as the rights in the first sentence of Article 184 (1) of the Civil Code; however, the reasons were not sufficient, and even led to the dilemma of whether the right of de facto disposal belongs to rights in rem or contractual right. Does the right of de facto disposal of unlawful buildings possess the legitimacy under tort law protection? This is one of the main focus of the thesis. The ownership of lawful buildings should be protected by tort law, but is it the same for unlawful buildings? This thesis builds on the most basic concepts to examine whether or not unlawful buildings should establish ownership. If ownership of unlawful buildings cannot be transferred privately, then why can it be done with court auction procedure? Also, why does private construction of unlawful buildings need to acquire ownership? What is the theoretical foundation of that? In this thesis, we believe unlawful buildings should not establish ownership, so there should be no violation of ownership. Also, does the contract of trading unlawful buildings pass the test of Article 71 and 72 of the Civil Code? Taiwanese court practice interprets Building Act as rules of banning and approves the effectiveness of the contract. Based on the legislative purpose of Building Act and observation on the effectiveness of the suppression of Building Act on unlawful buildings, in this thesis, we believe it is more appropriate to interpret the Building Act as rules of effectiveness, and also allowing unlawful buildings that damage public safety on the market hardly meets the criteria of public order. The purpose of this thesis is to reexamine the appropriateness of court practices and theories. With the ideas of the thesis, we hope to bring attentions to the problems of unlawful buildings and improve law awareness among Taiwanese people. |
URI: | http://tdr.lib.ntu.edu.tw/jspui/handle/123456789/73331 |
DOI: | 10.6342/NTU201900955 |
Fulltext Rights: | 有償授權 |
Appears in Collections: | 法律學系 |
Files in This Item:
File | Size | Format | |
---|---|---|---|
ntu-108-1.pdf Restricted Access | 4.05 MB | Adobe PDF |
Items in DSpace are protected by copyright, with all rights reserved, unless otherwise indicated.