- 英文摘要
- In order to protect the indigenous people, the indigenous reserve land can only be owned by the indigenous people in accordance with the law. In practice, however, there are contracts between non-indigenous people and indigenous people concerning indigenous reserve land, which are of course invalid according to Article 71 of the Civil Law. Disputes over the validity of such contracts shall be determined in accordance with Article 246 of the Civil Code, which may be an opportunity for circumvention of the law.
For different reasons, this article agrees with the conclusion of Judgment No 1636 of the Civil Court of the Supreme Court in 2019, which held that where a contract provides that the non-indigenous person will be registered in the name of the indigenous person, and the subject matter acquired in accordance with the contract will be registered as being owned by the indigenous person of the borrower, and superficial rights are given the non-indigenous person at the same time, the overall transaction would be a roundabout violation of Article 71 of the Civil Code. Accordingly, the buyer would have no right to possess the property, and must return the property to the seller. The buyer should also cancel the registration of the transfer of ownership, while the seller shall be responsible for any expenses incurred by the lender.
Additionally, the normative effect of the registration would apply if the registrant transfers the indigenous reserve land registered in his/her name to a third party.
- 目次
- 壹、前言
貳、原住民保留地制度沿革
一、臺灣光復之前
二、臺灣光復之後
參、非原住民借名迂迴承買原住民保留地契約之效力
一、「原住民」及原住民保留地之意義
二、非原住民買受原住民保留地所締結債權契約之效力
肆、不法原因之給付
一、不法原因給付立法理由
二、不法原因給付在適用上之構成要件
三、不法原因而為之給付之法律效果：不法原因而為之給付不得
請求返還
四、民法第180條第4款規定類推適用於所有物返還請求權之問
題
五、評析（代小結）
伍、非原住民借名迂迴承買原住民保留地契約被判定無效後之回復
關係
一、在三人契約關係間無效之縮短給付回復關係
二、買賣價金之返還
三、無權自主占有人費用支出之償還
陸、結論
