重要實務
【高雄-帝謙法律事務所/土地重要實務(32)】農地移轉後，承受人自耕能力證明被撤銷，原登記機關得撤銷登記處分、塗銷移轉登記。
2014.4.08 高雄律師-楊岡儒律師
發文單位： 司法院
解釋字號： 釋字第 379號
解釋日期： 民國 84 年 5 月 12 日
解釋爭點：
農地移轉後，承受人自耕能力證明被撤銷，原登記機關得否撤銷登記處分、塗銷移轉登記？
資料來源：
司法院公報 第 37 卷 6 期 1-6 頁
總統府公報 第 6030 號 2-8 頁
司法院大法官解釋（七）（98年10月版）第 135-164 頁
相關法條：
中華民國憲法 第 143 條 ( 36.01.01 )
土地法 第 30 條 ( 84.01.20 )
土地登記規則 第 82 條 ( 80.11.29 )
解 釋 文：
私有農地所有權之移轉，其承受人以能自耕者為限，乃土地法第三十條第一項前段所明定。申請農地所有權移轉登記者，依土也登記規則第八十二條第一項第一款前段規定，應提出承受人自耕能力證明書，登記機關既應就所提自耕能力證明書為形式上的審查，則其於登記完畢後，經該管鄉 (鎮、市、區) 公所查明承受人不具備自耕能力而撤銷該自耕能力證明書時，其原先所有權移轉登記所據「具有自耕能力」之事由，己失所附麗，原登記機關自得撤銷前此准予登記之處分，逕行塗銷其所有權移轉登記
。
理 由 書：
國家對於土地之分配與整理，應以扶植自耕農及自行使用土地人為原則，係憲法第一百四十三條第四項所揭櫫之國家土地政策；土地法第三十條第一項前段規定，私有農地所有權之移轉，其承受人以能自耕者為限，第二項復規定，違反前項規定者，其所有權之移轉無效，即屬首開憲法原則之體現。
地政機關受理農地所有權移轉登記之申請，依土地登記規則第八十二條第一項第一款前段之規定，係憑申請人戶籍所在地之鄉（鎮、市、區）公所核發自耕能力證明書為認定承受人具有自耕能力之據。該管鄉（鎮、市、區）公所於核發自耕能力證明書後，如經查明承受人與內政部訂頒「自耕能力證明書之申請及核發注意事項」所載具備自耕能力之要件不符，因而撤銷該證明者，地政機關原先准予辦理所有權移轉登記所據「具有自耕能力」之事由，即失所附麗，前此准予登記之處分，既有瑕疵，地政機關自待撤銷之，逕將所有權移轉登記予以塗銷。行政院六十二年八月九日台六十二內字第六七九五號函所為之解釋，符合上開土地法規定之意旨，並非以命令就人民之權利為得喪變更之規定。
承受人本於買賣契約辦理所有權移轉登記，固係依法律行為而取得所有權；然就地政機關准予辦理私有農地所有權移轉登記言，係以承受人已提出自耕能力證明書為前提，此一前提既因自耕能力證明書之撤銷而不存在，其在行政上原准予辦理移轉登記之要件，顯有久缺，從而前此所為之登記，即不能謂無瑕疵，地政機關自得撤銷准予登記之處分，塗梢該移轉登記。地政機關係因自耕能力證明書被撤銷，而塗銷所有權移轉登記，並非逕行認定該買賣為無效，尚不涉及私權之認定。關於土地之買賣，是否因以不能之給付為契約標的而無效，買賣雙方當事人如有爭執，當然可訴請由民事法院依法裁判。
按土地法第三十條第一項前段規定私有農地所有權移轉登記之承受人以能自耕者為限，本係基於國家土地政策，即公共利益之維護而為之限制，私有農地承受人有無自耕能力，係由核發自耕能力證明書之機關認定，承受人明知無自耕能力，猶提供不正確資料以為自耕能力證明之申請，即屬不法，當不生信賴保護之問題，自應負此法律上可能發生之效果；若承受人未有不法之行為，而係行政機關之錯誤致核發不實之自耕力證明書，經地政機關憑以辦理所有權移轉登記，基於公益之維護，且依土地法第三十第第二項規定，其所有權之移轉，亦屬無效，仍應認逕行塗銷登記為無不合。至如何補償其信賴該利益，係屬另一問題。又善意第三人若信賴該登記而取得土地權利時，依本院院字第一九一九號解釋之旨意，要不因登記處分之撤銷而被追奪，併此指明。
J. Y. Interpretation No. 379
Date 1995.5.12
Issue
Where the certificate of self-tilling ability is subsequently cancelled because the land transferee is found to be incapable of cultivating the land, is the land administration office entitled to delete the recordation already approved on the ground of nullification of the certificate of self-tilling ability?
Holding
That transfer of ownership to private farmland may be made only to a transferee capable of cultivating the land by himself is specifically set forth in the Land Act under Article 30, Paragraph 1, the first sentence. And in applying for recordation of transfer of ownership to farmland, the transferee is required by Land Recording Regulations, Article 82, Paragraph 1, Subparagraph 1, the first sentence, to produce a certificate of self-tilling ability. Inasmuch as the recording office is charged with the duty to carry out a prima facie review of the certificate of self-tilling ability, it is also empowered to revoke its approval for recordation of the transfer of ownership and delete the same after the effectuation thereof if the respective hsiang, township, city or precinct office in charge finds that the transferee is not actually capable of self-tilling and cancels the certificate of self-tilling ability, whereby the “self-tilling ability” of the transferee to which the original recordation of the transfer of the ownership appertains is rendered fictitious.
Reasoning
The land policy of the state as proclaimed by the Constitution in Article 143, Paragraph 4, is that in the distribution and readjustment of land the state shall in principle assist self-farming landowners and persons who make use of the land by themselves. To bring this constitutional principle into reality, the Land Act provides under Article 30, Paragraph 1, the first sentence, that transfer of ownership to private farmland may be made only to a transferee capable of cultivating the land by himself and provides further in Paragraph 2 thereof that a transfer in violation of such requirement will be null and void.
When handling an application for recordation of transfer of the title to farmland, the land administration office, in pursuance of the provision of the Land Recording Regulations, Art. 82, Paragraph 1, Subparagraph 1, the first sentence, relies on the certificate of self-tilling ability issued by the office of the hsiang, township, city or precinct where the applicant maintains his household registration to determine if the transferee is capable of cultivating by himself. If the hsiang, township, city or precinct office in charge, after having issued to a transferee a certificate of self-tilling ability, finds that the transferee does not meet the elements required for the self-tilling ability by the Precautionary Matters on Submission of Application and Issuance of Self-tilling Certificate established by the Ministry of Interior, and thereby cancels the certificate, the “self-tilling ability” of the transferee based on which the land administration office gave its approval to the application for recordation of the transfer of the ownership is now rendered fictitious, and its act of such approval, being defective, is certainly revocable and the recordation of the transfer of the ownership may be deleted. The interpretation given in Directive T. 62 N. 6795 (Executive Yuan, 1973) is consistent with the essence of the Land Act as it is not intended to provide for the acquisition or loss of or alteration to any right of people through the issue of administrative order.
While a transferee who applies for the transfer of ownership based on a contract of sale acquires the title by virtue of a juristic act, the approval granted by a land administration office for the recordation of the transfer of the title to private farmland is preconditioned upon the production by the transferee of a certificate of self-tilling ability. If this precondition no longer exists as a result of the cancellation of the certificate of self-tilling ability, the element required for recordation of the transfer of ownership previously approved in administration is shown to be insufficient, and the recordation effectuated before should not be deemed to be free of defect. Thus, the land administration office is unquestionably entitled to revoke its act to allow recordation and accordingly delete such recordation of the transfer of the ownership. The deletion of such recordation of the transfer of the ownership is resultant from the cancellation of the certificate of self-tilling ability, rather than aimed at direct voidance of the sale, and hence has nothing to do with the determination of any private right. In the event of a dispute between the parties to the sale of land over the issue of whether the sale is null and void on the ground that the subject matter of the contract is one that cannot be performed, the issue may without doubt be bought to a civil court for adjudication.
The purpose for the Land Act provision in Article 30, Paragraph 1, the first sentence, that transfer of ownership to private farmland may be made only to a transferee capable of cultivating the land by himself is to safeguard the public interest under the national land policy through the imposition of restraint. Whether the transferee of a private farmland is capable of self-cultivating is determined by the agency having charge of the issue of certificates of self-tilling ability. A transferee who, knowing that he is not capable of tilling the land, presents false information to support his application for a certificate of self-tilling ability, has acted unlawfully, and is not entitled to protection for his reliance, and must of course be held responsible for any possible legal consequence. If the transferee has not acted unlawfully, but an incorrect certificate of self-tilling ability was issued by mistake by the administrative agency, based on which the land administration office processed the ownership transfer recordation, such transfer of ownership must also be treated as null and void for the purpose of safeguarding the public interest and under Article 30, Paragraph 2, of the Land Act. Consequently, the deletion of the recordation should not be deemed to be illegal. As regards how his reliance interest may be compensated, this is a separate issue. Incidentally, where a bona fide third person acquires rights in the land in reliance on such recordation, he should not be retroactively deprived of such right simply because of the nullification of the recordation, as we have so expounded in our Interpretation Yuan-tze No.1919.
Translated by Raymond T. Chu.
解釋字號： 釋字第 379號
解釋日期： 民國 84 年 5 月 12 日
解釋爭點：
農地移轉後，承受人自耕能力證明被撤銷，原登記機關得否撤銷登記處分、塗銷移轉登記？
資料來源：
司法院公報 第 37 卷 6 期 1-6 頁
總統府公報 第 6030 號 2-8 頁
司法院大法官解釋（七）（98年10月版）第 135-164 頁
相關法條：
中華民國憲法 第 143 條 ( 36.01.01 )
土地法 第 30 條 ( 84.01.20 )
土地登記規則 第 82 條 ( 80.11.29 )
解 釋 文：
私有農地所有權之移轉，其承受人以能自耕者為限，乃土地法第三十條第一項前段所明定。申請農地所有權移轉登記者，依土也登記規則第八十二條第一項第一款前段規定，應提出承受人自耕能力證明書，登記機關既應就所提自耕能力證明書為形式上的審查，則其於登記完畢後，經該管鄉 (鎮、市、區) 公所查明承受人不具備自耕能力而撤銷該自耕能力證明書時，其原先所有權移轉登記所據「具有自耕能力」之事由，己失所附麗，原登記機關自得撤銷前此准予登記之處分，逕行塗銷其所有權移轉登記
。
理 由 書：
國家對於土地之分配與整理，應以扶植自耕農及自行使用土地人為原則，係憲法第一百四十三條第四項所揭櫫之國家土地政策；土地法第三十條第一項前段規定，私有農地所有權之移轉，其承受人以能自耕者為限，第二項復規定，違反前項規定者，其所有權之移轉無效，即屬首開憲法原則之體現。
地政機關受理農地所有權移轉登記之申請，依土地登記規則第八十二條第一項第一款前段之規定，係憑申請人戶籍所在地之鄉（鎮、市、區）公所核發自耕能力證明書為認定承受人具有自耕能力之據。該管鄉（鎮、市、區）公所於核發自耕能力證明書後，如經查明承受人與內政部訂頒「自耕能力證明書之申請及核發注意事項」所載具備自耕能力之要件不符，因而撤銷該證明者，地政機關原先准予辦理所有權移轉登記所據「具有自耕能力」之事由，即失所附麗，前此准予登記之處分，既有瑕疵，地政機關自待撤銷之，逕將所有權移轉登記予以塗銷。行政院六十二年八月九日台六十二內字第六七九五號函所為之解釋，符合上開土地法規定之意旨，並非以命令就人民之權利為得喪變更之規定。
承受人本於買賣契約辦理所有權移轉登記，固係依法律行為而取得所有權；然就地政機關准予辦理私有農地所有權移轉登記言，係以承受人已提出自耕能力證明書為前提，此一前提既因自耕能力證明書之撤銷而不存在，其在行政上原准予辦理移轉登記之要件，顯有久缺，從而前此所為之登記，即不能謂無瑕疵，地政機關自得撤銷准予登記之處分，塗梢該移轉登記。地政機關係因自耕能力證明書被撤銷，而塗銷所有權移轉登記，並非逕行認定該買賣為無效，尚不涉及私權之認定。關於土地之買賣，是否因以不能之給付為契約標的而無效，買賣雙方當事人如有爭執，當然可訴請由民事法院依法裁判。
按土地法第三十條第一項前段規定私有農地所有權移轉登記之承受人以能自耕者為限，本係基於國家土地政策，即公共利益之維護而為之限制，私有農地承受人有無自耕能力，係由核發自耕能力證明書之機關認定，承受人明知無自耕能力，猶提供不正確資料以為自耕能力證明之申請，即屬不法，當不生信賴保護之問題，自應負此法律上可能發生之效果；若承受人未有不法之行為，而係行政機關之錯誤致核發不實之自耕力證明書，經地政機關憑以辦理所有權移轉登記，基於公益之維護，且依土地法第三十第第二項規定，其所有權之移轉，亦屬無效，仍應認逕行塗銷登記為無不合。至如何補償其信賴該利益，係屬另一問題。又善意第三人若信賴該登記而取得土地權利時，依本院院字第一九一九號解釋之旨意，要不因登記處分之撤銷而被追奪，併此指明。
J. Y. Interpretation No. 379
Date 1995.5.12
Issue
Where the certificate of self-tilling ability is subsequently cancelled because the land transferee is found to be incapable of cultivating the land, is the land administration office entitled to delete the recordation already approved on the ground of nullification of the certificate of self-tilling ability?
Holding
That transfer of ownership to private farmland may be made only to a transferee capable of cultivating the land by himself is specifically set forth in the Land Act under Article 30, Paragraph 1, the first sentence. And in applying for recordation of transfer of ownership to farmland, the transferee is required by Land Recording Regulations, Article 82, Paragraph 1, Subparagraph 1, the first sentence, to produce a certificate of self-tilling ability. Inasmuch as the recording office is charged with the duty to carry out a prima facie review of the certificate of self-tilling ability, it is also empowered to revoke its approval for recordation of the transfer of ownership and delete the same after the effectuation thereof if the respective hsiang, township, city or precinct office in charge finds that the transferee is not actually capable of self-tilling and cancels the certificate of self-tilling ability, whereby the “self-tilling ability” of the transferee to which the original recordation of the transfer of the ownership appertains is rendered fictitious.
Reasoning
The land policy of the state as proclaimed by the Constitution in Article 143, Paragraph 4, is that in the distribution and readjustment of land the state shall in principle assist self-farming landowners and persons who make use of the land by themselves. To bring this constitutional principle into reality, the Land Act provides under Article 30, Paragraph 1, the first sentence, that transfer of ownership to private farmland may be made only to a transferee capable of cultivating the land by himself and provides further in Paragraph 2 thereof that a transfer in violation of such requirement will be null and void.
When handling an application for recordation of transfer of the title to farmland, the land administration office, in pursuance of the provision of the Land Recording Regulations, Art. 82, Paragraph 1, Subparagraph 1, the first sentence, relies on the certificate of self-tilling ability issued by the office of the hsiang, township, city or precinct where the applicant maintains his household registration to determine if the transferee is capable of cultivating by himself. If the hsiang, township, city or precinct office in charge, after having issued to a transferee a certificate of self-tilling ability, finds that the transferee does not meet the elements required for the self-tilling ability by the Precautionary Matters on Submission of Application and Issuance of Self-tilling Certificate established by the Ministry of Interior, and thereby cancels the certificate, the “self-tilling ability” of the transferee based on which the land administration office gave its approval to the application for recordation of the transfer of the ownership is now rendered fictitious, and its act of such approval, being defective, is certainly revocable and the recordation of the transfer of the ownership may be deleted. The interpretation given in Directive T. 62 N. 6795 (Executive Yuan, 1973) is consistent with the essence of the Land Act as it is not intended to provide for the acquisition or loss of or alteration to any right of people through the issue of administrative order.
While a transferee who applies for the transfer of ownership based on a contract of sale acquires the title by virtue of a juristic act, the approval granted by a land administration office for the recordation of the transfer of the title to private farmland is preconditioned upon the production by the transferee of a certificate of self-tilling ability. If this precondition no longer exists as a result of the cancellation of the certificate of self-tilling ability, the element required for recordation of the transfer of ownership previously approved in administration is shown to be insufficient, and the recordation effectuated before should not be deemed to be free of defect. Thus, the land administration office is unquestionably entitled to revoke its act to allow recordation and accordingly delete such recordation of the transfer of the ownership. The deletion of such recordation of the transfer of the ownership is resultant from the cancellation of the certificate of self-tilling ability, rather than aimed at direct voidance of the sale, and hence has nothing to do with the determination of any private right. In the event of a dispute between the parties to the sale of land over the issue of whether the sale is null and void on the ground that the subject matter of the contract is one that cannot be performed, the issue may without doubt be bought to a civil court for adjudication.
The purpose for the Land Act provision in Article 30, Paragraph 1, the first sentence, that transfer of ownership to private farmland may be made only to a transferee capable of cultivating the land by himself is to safeguard the public interest under the national land policy through the imposition of restraint. Whether the transferee of a private farmland is capable of self-cultivating is determined by the agency having charge of the issue of certificates of self-tilling ability. A transferee who, knowing that he is not capable of tilling the land, presents false information to support his application for a certificate of self-tilling ability, has acted unlawfully, and is not entitled to protection for his reliance, and must of course be held responsible for any possible legal consequence. If the transferee has not acted unlawfully, but an incorrect certificate of self-tilling ability was issued by mistake by the administrative agency, based on which the land administration office processed the ownership transfer recordation, such transfer of ownership must also be treated as null and void for the purpose of safeguarding the public interest and under Article 30, Paragraph 2, of the Land Act. Consequently, the deletion of the recordation should not be deemed to be illegal. As regards how his reliance interest may be compensated, this is a separate issue. Incidentally, where a bona fide third person acquires rights in the land in reliance on such recordation, he should not be retroactively deprived of such right simply because of the nullification of the recordation, as we have so expounded in our Interpretation Yuan-tze No.1919.
Translated by Raymond T. Chu.
今日瀏覽人數：6315 總瀏覽人數：9719693
|
帝謙高雄法律事務所 | 關於高雄律師 | 高雄法律顧問 | 高雄律師服務項目 | 不動產律師 | 高雄律師專欄 | 高雄律師法律諮詢 | 高雄律師最新消息 | 聯絡高雄律師 |
|
電話：(07)558-9090 傳真：(07)558-9010 地址：813 高雄市左營區明華一路350號11樓之2  Copyright © 2013-2015 Deep-Change Law Firm, All Rights Reserved 網頁設計:uuTaiwan |
友情連結 |
帝謙法律事務所是國內專業的律師事務所，我們提供專業的法律諮詢、民事訴訟、刑事訴訟、行政訴訟訴願、保險理賠、撰寫存證信函、律師信函、不動產法律、遺產繼承規劃、常年法律顧問、契約撰擬…及其他法律專案，高雄律師團隊經驗豐富、辦案認真，積極處理並以同理心處理每個客戶所委託的案件。