不動產估價主體適格性之研究

Abstract

按未取得不動產估價師資格者，不得辦理土地、建築改良物、農作改良物及其權利之估價業務。此乃不動產估價師法第14條所明定。行政機關於無法律授權情形下，恣意專擅以行政函示將建築師法第16條規定解釋成為建築師依法得辦理建築物及建築土地之估價，導致未取得估價師資格之建築師，是否違反不動產估價師法第14條規定而應依同法第32條規定裁罰之疑義。\n上開疑義所涉及者，首先以法解釋論觀點，不動產估價師法第14條本文與但書規定之法律性質為何？又行政機關於無法律明確授權下所為之行政解釋是否逾越法律解釋之界限？其次以法律漏洞補充觀點，不動產估價師法第14條第2項本文規定是否存有法律漏洞？第14條第2項但書規定是否填補本文規定之漏洞？再則以法規範效力觀點，建築師繼續辦理不動產估價權益是否有保護必要？又僅保護建築師繼續辦理不動產估價是否違反平等原則？最後以交易成本及實證觀點，探究不動產估價師與建築師辦理法拍估價有無顯著差異？建築師辦理不動產估價是否引發逆選擇及道德危險？\n本文認為，首先以法解釋論觀點，第14條第2項本文與但書規定間，係分屬不同法規範領域；行政機關所為闡釋已逾越法律條文文義所能涵蓋之界限；政機關所為闡釋已違背徹底保障不動產交易安全之目的。其次以法律漏洞觀點，第14條第2項本文規定既符合規範計畫之目的，自非屬法律漏洞；同條項但書規定之增設，並非填補該條項本文之法律漏洞，其僅係重申建築師法與不動產估價師法規範不同；另行政機關所為闡釋，實已肇致無法將估價業者之執業資格及業務責任納入規範之法律漏洞。再則以法規範效力觀點，憲法第86條第2款規定專門職業及技術人員執業資格，應經考試院依法考選銓定之。因此人民選擇從事專門職業之自由，根據憲法之規定，即受限制(大法官釋字第682號)。復既已設有合理保護措施及過渡條款，建築師繼續辦理不動產估價權益即無信賴保護之必要，故增訂第14條第2項但書規定之立法理由，殊非妥適，顯有違憲之虞。另已從事不動產估價業務者中，僅保護建築師繼續辦理不動產估價違反平等原則。爰此，行政機關所為行政闡釋牴觸第14條本文規定，違反法律優位、法律保留、比例、平等原則。最後以實證交易成本觀點，透過實證分析結果顯示，不動產估價師不僅較能提供適切之不動產價值資訊，而且更能有效地降低不動產交易成本，而建築師不受不動產估價師法懲戒規範之拘束，將有引發逆選擇及道德危險之虞。

That without qualification of Real Estate Appraiser no one is allowed to undertake appraisal of land, buildings, crops and interest upon them is specified in Article 14 of the Real Estate Appraiser Art. Nevertheless, through the promulgated Letter No. Taiwan-89-Interior-Construction-8910591 on October, 6, 2000, the Construction and Planning Agency, Ministry of the Interior only relied upon Article 16 of the Architectures Act and then roughly and literally explained that architects could still undertake appraisal affairs without the qualification. Such unfounded and careless explanation is full of ambiguity and controversial and has led to a doubt whether an architect without the qualification could have breached Article 14 of the Real Estate Appraiser Art and should be fined according to Article 32 of the Art. \nIn many respects there emerge serious concerns that must be further clarified and addressed. First, from the perspective of legal hermeneutics, what does the legislative intent entail the essential stipulation in the first half of Paragraph II of Article 14 and the exceptive provision in the second half? Moreover, without the mandate conferred by law to make such administrative interpretation, has the executive branch of government gone beyond the scope of legal hermeneutics? Second, from the perspective of filling the loopholes in the law, are there loopholes in Paragraph II of Article 14? Has the provision of the proviso to Paragraph II of Article 14 remedied the loopholes? Next, from the perspective of legal effect, is it necessary to protect the interests of architects so that their appraisal affairs remain even though they are not qualified? Has this kind of protection breached the principle of equality? Finally, from the perspective of new institutional economics, can architects who undertake appraisal affairs cause adverse selection and moral hazard if there are differentiated appraisals to the same case between them and real estate appraisers?\nAll in all, the author has reached some critical conclusions in this article. First, from the perspective of legal hermeneutics, the essential stipulation and the provision of the proviso in Paragraph II of Article 14 belong in separate scopes of legislation. The administrative interpretation made by the executive branch of government has not only gone beyond the scope of legal hermeneutics but also violated the legislative intent to facilitate the safety of transactions of real estate and protect the interests of parties in the transactions. Second, the provision of the proviso is enacted in Paragraph II of Article 14 not for filling the loopholes but only for reaffirming the regulatory difference between the Real Estate Appraiser Art and the Architectures Act because in accordance with the legislative intent the first half of Paragraph II of Article 14 per se leaves no room for loopholes. Ironically, such interpretation creates a new loophole, that is, the provisions of qualification and responsibility for practicing appraisals cannot be entirely applied to whoever undertakes appraisal work. Third, from the perspective of legal effect, in Subparagraph 2 of Article 86 of the Constitution of the Republic of China it is specified that qualifications for practice in specialized professions or as technicians shall be determined and registered through examination by the Examination Yuan in accordance with law. People’s freedom to choose occupations is thus limited under the Constitution. Additionally, whoever has undertaken real estate appraisal stated before the Act takes effects still has time to obtain the requisite qualification in that transitional provisions specified in Article 44 provides reasonable protective measures. Hence, the provision enacted in the proviso of Paragraph II of Article 14 to allow only architects to continue practicing appraisal works not only is unnecessary legitimate expectation but also infringes the Constitution and the principle of equality since architects have no more expectations or interests lost after the Act takes effect than the others. Consequently, the administrative interpretation of Article 14 has simultaneously breached the principles of legal hierarchical structure, legal reservation, proportionality and equality. Finally, in order to justify the theory of new institutional economics, the author conducts an empirical research on the difference of judicial foreclosure appraisals between the architects and real estate appraisers. The result shows that the real estate appraisers not only provide more proper and valuable information of real estate but also incur lower transaction cost than the architects do, and that architects who shall be not held liable for any fine or punishment resulting from violating the Real Estate Appraiser Art indeed generate adverse selection and moral hazard.