都市更新制度困境研究－強制參與/排除取徑的解析與重構

為刺激、扶植營建產業能夠復甦與發展，政府推出全國性的都市更新政策，刻意且強力地將建築改建包裝成公共利益，使得私部門得以僭用屬於公權力的「強制參與/排除」取徑，來介入憲法保障的私有產權支配。在怠於釐清、證成為什麼可以採取強制（WHY）、何種前提要件下才能執行強制（HOW）、誰應該被強制（WHO）、誰可以執行強制（by WHOM）、強制應經何種程序始得執行（WHEN & WHERE）等關鍵前提要件下，形成了一種混淆公權、私權份際的國家干預。本研究透過權力三面向理論，解析混淆公、私權的都市更新強制制度的形成，實是一種有計畫的權力漂洗。透過立法―權力第二循環（secondary circulation of power）―的關鍵決策制定場域，使得應無權力者攫取權力、應負義務者逃卸責任，反之，讓少數、弱勢者的基本權被剝奪，承擔原無之參與都更重建義務，產生違憲疑慮，導致都市更新的推動陷入困境。然政府並未認真、謙卑地面對制度困境的根源，而是一再以擬、修訂各種規則、細則、辦法或準則來增加法定程序，企圖用程序正義掩飾實質正義的不足，最終構成一部邏輯錯綜複雜、逸脫都市計畫管控的《都市更新條例》，乃典型的公法遁入私法作為。平息止紛之道，應將現行法中的公權、私權關係釐清，從公法、私法分流的基礎重新檢視各條文對於權利的界分與義務歸屬。正本清源後，即有重新匯集公、私部門正向能量的可能，進而創造社會整體最大利益。

關鍵字

都市更新；強制參與/排除；權力三面向；權力漂洗；財產權

並列摘要

For the purpose of stimulating and nourishing the revival and prosperity of the real estate industry, the Taiwan government triggered a national urban renewal policy that overwhelmingly misinterpreted residential reconstruction as a mean to pursue public interest. As a result, the private sector was empowered to be equipped with quasi-official authority to utilize the “compulsory participation/elimination” violating the constitutional right of private property. In the absence of clarifying and identifying the key prerequisites (WHY, HOW, WHO, by WHOM, and WHEN & WHERE) of the enforcement of the compulsory participation/elimination, a confounded demarcation between the official authority and private rights has been created. This study analyzes the establishment of the compulsory system through the theory of “three faces of power”, revealing that it was actually a planned “power laundering” by politicians. Through the legislative process (the secondary circulation of power),which is the most critical decision-making mechanism, land speculators are empowered by law and the regulatory agency are exempted from liability. On the other hand, the minority and the disadvantaged are deprived of their constitutional rights and are forced to participate in urban renewal projects. This measure raised the concern of violating Constitution, eventually led the urban renewal into predicament. However, without seriously and humbly facing the lesion of the institutional dilemma, the government has repeatedly drafted and amended various regulations to complicate the legal process in order to cover up the absence of substantive justice with procedural justice. The government eventually installed the Urban Renewal Act embedded with a self-justifying rationality, leading to the decouple between urban renewals and urban plans. This is a typical case of “Flucht in das Privatrecht”─flight to private law. A way to fix the Urban Renewal Act is to clarify the demarcation between official authority and private rights by re-examining the division of rights and the obligations of stakeholders. Eventually, with a more reasonable Urban Renewal Act, stakeholders can better integrate resources and capacity from the public and private sectors to secure the best public interest.