違章建築管制之研究：以臺北市及新北市為例

臺灣地狹人稠，又歷經特殊之建築管制發展，人民守法意識不高，形成違章建築隨處可見之都市樣貌，其中臺北市及新北市更是人民生活受違建影響最大的都會區。近年來，因違建而生的重大社會事件不斷，已成為嚴重的居住安全問題，實有必要對現行管制法規進行全面檢討。惟處理違建的同時，不應只是強調拆除，人民受憲法所保障之權利亦不容忽視，諸如對於財產權之限制是否合理，人民是否享有適足住房權之保障等，皆應予以考量。我國違建形成有其獨特之歷史背景，故以興建時間區分為舊違建、既存違建以及新違建，而異其行政管制方式，經本文分析後認為，此乃依法律不溯及既往原則及信賴保護原則適用之結果，具有區分之實益。關於違建管制可能涉及之憲法上權利，包含財產權和居住相關權利，本文肯認違章建築屬財產權保障之範圍，並以對財產權限制程度之觀點檢視現行相關管制規定；另外，本文認為兩公約中的適足住房權具有我國憲法上基本權之品質，且可認定其內涵為：具有使個人得於特定處所和平、安全且有尊嚴地居住權利的積極面向，以及居住自由性質具抵抗功能的消極面向，得作為違建拆遷後安置措施之依據。關於違章建築行政管制之規定，目前主要係由中央訂定建築法、違章建築處理辦法，並授權各縣市政府自行規定地方法規。首先，探討整體法規體系是否符合法律保留原則，中央與地方對於所轄相關事務之分權是否合宜，以及人事組織編制須否調整。再者，進一步研究行政管制之各程序階段，包含查報認定、執行拆除、救濟程序之爭議問題。另外，違建拆除後續因信賴保護所生之拆遷給付、損失補償以及安置等問題，現行規定仍有許多闕漏待補強。結論將綜合上述所整理之問題與分析，提出具體之修法建議，期盼能對我國長久以來的違建管制難題，提供不同的思考方向。

關鍵字

違章建築；行政管制；信賴保護；適足住房權；查報拆除；損失補償

並列摘要

Taiwan is small and densely populated. Due to the special development of building control and low law-abiding awareness among the people, illegal buildings have been a common urban landscape across Taiwan. Taipei City and New Taipei City, in particular, are metropolitan areas where residents are most affected by illegal buildings. In recent years, the number of social incidents arising from illegal buildings has continued to rise, posing a serious threat to residential security. A comprehensive review of the existing control laws and regulations is thus necessary. However, when dealing with illegal buildings, the emphasis cannot be placed solely on demolition of buildings. The constitutional rights of the people cannot be neglected. For example, whether the restrictions of property rights are reasonable and whether people’s right to adequate housing is ensured should also be considered. The formation of illegal buildings in Taiwan has a unique historical background. Illegal buildings have been classified by time of construction into three categories, including old illegal building, existing illegal building, and new illegal building. The different administrative control mechanisms for each category, as found by this study, are a result of the application of the Principle of Non-retroactivity of Laws and the Principle of Legitimate Expectation, and there are benefits of distinction between these categories. With regard to the constitutional rights that may be involved in the control of illegal buildings, including property rights and residency-related rights, this study agrees that illegal buildings are covered by property rights and the existing control regulations should be reviewed from the perspective of the extent of restrictions of property rights. Besides, this study argues that the right to adequate housing as prescribed in the ICCPR and ICESCR has the quality of the fundamental rights protected by Taiwan Constitution, and it has both positive and negative implications. On the positive side, it assures everyone of a right to residing in a specific place with peace, security, and dignity; on the negative side, it suggests that the freedom of residence has a resistance nature. Thus, it can serve as a foundation for resettlement after demolition of illegal buildings. With regard to the regulations governing administrative control of illegal buildings, Building Act and Regulations for the Handling of Illegal Buildings are enacted by the central government, and local governments are authorized to legislate local regulations on their own. In this study, whether the legal system complies with the Principle of Legal Reservation, whether the separation of powers between the central and local governments is appropriate, and whether the personnel organization structure needs an adjustment are first examined. Later, the stages in the administrative control of illegal buildings, including reporting and identification, execution of demolition, and remedial procedure are investigated. Further, issues stemming from application of the Principle of legitimate expectation after demolition of illegal buildings, such as compensation for demolition, losses compensation, and resettlement, are discussed. There are still numerous gaps in the existing regulations that need to be filled. In the conclusion section, this study summarizes the problems and analysis results and proposes suggestions for amendment of the existing laws and regulations, in hope of providing a different way of thinking about the long-standing problem of illegal buildings control in Taiwan.

並列關鍵字

illegal building ； administrative control ； principle of legitimate expectation ； right to adequate housing ； investigation and demolition ； losses compensation