論市地重劃對於建築物所有權補償規範之合理性－有屋無地者等於拆遷戶？

市地重劃係依據都市計畫規劃內容來辦理，促使土地作更合理、經濟之利用，以增進都市建設發展的綜合性土地改良事業。市地重劃之機制係以「土地所有權人」之參與為制度核心。惟對於建築物之所有權人，市地重劃相關規範卻無保障權利之規定，為了後續的開發建設，市地重劃範圍之建築物大多數都面臨拆遷的命運，且僅給予拆遷補償費用，導致一定規模之強制遷離。相較於都市更新與土地徵收，市地重劃對於建築物的權利保障已經過於落後，且有違反居住權的疑慮。本文以「建築物」被劃入市地重劃範圍後，建築物所有權人權益部分進行討論，先探究市地重劃建物拆遷補償的問題，以聯合國兩公約對於適足住房權與拆遷說明建物拆遷補償的規範後，再從有屋無地的土地使用權利開展，就「有屋無地」是否有土地使用權利進行區分，探討市地重劃「有屋無地」的不同類型以及其相對應的權利保障模式。本文建議，從適足住房權的角度觀察，基於市地重劃所帶來的建築物所有權之權利保障，應考量該強制遷居發對於居住、與住居有密切關聯之經濟活動，以及對於其他人權的影響，除了建築物的損失之外，也必須衡量該土地開發所導致的強制遷居對於適足住房權造成之影響情形和程度、原居民必須另找尋住居處所、搬家與遷移、家人安頓、繼續或重新開展維生之經濟活動所必要的生活重置成本。

關鍵字

市地重劃；有屋無地；拆遷補償；重置成本；適足住房權

並列摘要

Urban consolidation is a comprehensive land improvement project based on the content of urban planning to promote more reasonable and economical use of land in order to enhance overall urban construction and development. The mechanism of urban consolidation is based on the strong involvement of the ＂land owners＂ within the system. However, the regulations of the urban consolidation do not have provisions to guarantee rights for the owners of the building (house owners). When urban redevelopment is happening for subsequent development and construction, most of the buildings within the scope of the urban consolidation face the threat of demolition where some certain scale of forced eviction will also be carried out with only relocation compensation being given. In comparison with urban renewal and land expropriation, urban consolidation has been too outdated for protecting the rights of building owners, and there are doubts about violation of the right to adequate housing. This article discusses the rights and interests of building owners as ＂buildings＂ are now included in the scope of urban consolidation. Firstly, it explores the issue of demolition compensation for the buildings after the rezoning is being implemented. The two United Nations conventions explain the right to adequate housing and adequate standard of compensation to the people whose houses will be demolished. After the regulation of demolition compensation is being discussed, the rights for leasehold land will be reviewed to distinguish whether there is a land use right for ＂leasehold land＂, and the corresponding rights protection for different types of ＂leasehold land＂ in the urban consolidation will be examined. This article suggests that from the perspective of the right to adequate housing and based on the principles of protecting the building ownership rights brought about by the urban consolidation, consideration should be given to the impact of economic activities and other human rights closely related to the forced eviction. Apart from the surrender of buildings, the influence and scale of impact of the forced relocation caused by the urban development on the right to adequate housing must also be measured. In addition, the replacement cost for relocation, settlement and other relevant economic activities for building owners must also be acknowledged.