日治初期臺灣土地調查事業階段的「公業」概念演變

日本領有臺灣，總督府帶來現代治理模式──即透過土地調查事業釐清土地的所有權人，將清代的土地關係轉變為以所有權為中心的現代土地權利秩序。1898年展開土地調查事業後，各類團體皆面臨業主權申告問題。這些團體財產該如何申告？本島各類祭祀舊慣團體，因多登錄為神佛名稱，既非自然人，也非法人，此時，是否符合民法下權利主體的資格？因此，近代政府面臨如何用近代權利體系的概念加以轉換舊慣團體性質的難題。土地調查制度建立「公(團體所有)一共(數人共有)」的申告制度，讓團體可來申告，等同承認這些團體具有權利主體的地位。但這種團體申告的方式，無法釐清各團體不同的權利狀態與法律性質。因此，舊慣調查會、土地調查局、法院各機關針對各團體性質展開法律析辨，但因機關目的不同，解釋也有若干差異。要之，土地調查事業期間寬鬆的「公業」定義有了分化。舊情調查會、法院所創造指稱各類祭祀團體財產的「公業」，逐漸限縮為「祭祀公業」，法律性質為「特殊法律關係」，為日後舊慣立法事業的搭橋。寺廟、神明會則從「公業」概念中脫離，被認為是具有法人格的社團、財團或共有關係，完成公業土地權利化的初步概念轉換。

關鍵字

土地調查事業；舊慣調查事業；公業；共有；祭祀公業

並列摘要

During the early years of colonial rule in Taiwan, the Japanese Governor brought in a modern model of land survey to identify real property ownership. In order to convert the existing old land relations into the modern property ownership principle, the Japanese government in Taiwan began the land survey in 1898. The old local public benefit associations and the new Kou-Gyo came to meet face to face with the issue of how to declare the ownership of the property as respectively required? Under the Japanese colonial rule, because ＂deities and ancestors＂ were regarded as neither natural persons, nor legal persons, there arose the issue whether ＂deities and ancestors＂ were eligible to be the owners of the various properties claimed in their names under the old traditional customs organizations. If not, how to convert such systems into the modern legal system. The policy of land survey was to establish the land declaration system of ＂individual ownership and ownership in common＂. In other words , it provided that public benefit associations could claim the individual ownership of the property, meaning that land survey institution recognized the ownership of these public benefit associations could be the eligible legal entity . But these associations still couldn't clarify the difference of nature of their real estate rights from the juridical/natural persons under this land self-declaration method. As a result, Traditional Customs Research Organization, an affiliated organization of the government and Courts was establish to focus on the legal analysis and distinguishing of such various kinds of public benefit associations. During the period of the Governor's implementation of the land survey, the concept of ＂Kou-Gyo＂ as created by Traditional Customs Research Organization was gradually changed and reduced to that of ＂Ancestor Worship Guild＂, which served as the form of property ownership for the worship and honor in one's family's ancestors. It was a sort of ＂special legal relationship＂, which was the first step in the building up of the relevant property law derived from the traditional customs. Besides, the ＂Temple and Deities guilds＂, after having been detached from the ＂Kou-Gyo＂ (Ancestor Worship Guild) concept, were turned into the entities that could have the juridical personality as other public benefit associations, and thus become the corporation personality or ownership in common, by which the first step of the transformation into the modem concept of legal ownership of property was completed.