論受託人潛在之污染土地關係人責任

Abstract

土污法規定，污染土地關係人致土壤或地下水受到污染，或致他人受損害者，於其重大過失時，與污染行為人負連帶責任。所謂土地關係人，係指土地所有人、使用人與管理人。以土地為標的物成立之不動產資產信託，其受託機構為「受託管理及處分信託財產」之便，通常以受託人為所有權之登記名義人。是以受託人為形式意義之所有人，並兼具土地之管理人或使用人之地位。受託機關因承受遭污染之信託土地，而符合污染土地關係人定義，可能與污染行為人連帶負污染整治責任。然而受託人擁有信託財產之形式所有權與一般所有權不同，為有限之權能，是否符合土污法污染者付費原則，而應受歸責，不無疑問。此外，受託人潛在污染責任攸關債權人權益、金融投資及不動產開發市場之發展，牽涉公共利益與人民財產權犧牲之界限，主管機關宜全盤考量並審慎處理之。關於此議題，本文將以四大部分分析之，第一部分簡介我國土污法規定及受託人成立土地關係人整治責任之規範；第二部分以美國土污整治規範、其修法發展及判決分析為主，進行比較法研究；第三部分針對受託人之污染整治責任，分就責任主體認定與歸責要件等二層次，進行法律分析。第四部分提出具體之修法建議。

According to the Soil and Groundwater Pollution Remediation Act (the “Act”), the interested party of the polluted land who is grossly negligent shall be jointly and severally liable with the polluter for the costs/expenses to remediate the polluted land and the damages to others due to soil contamination or groundwater pollution. The interested party of the polluted land (“Interested Party”) means a person who is not a polluter of the land but is a user (lessee), an administrator, or the owner of the land when the land is declared as a statutory remediation site. The trustee of a real estate asset trust (“REAT”) will be registered as the landowner on records and regarded as administrator and the user of the land for management of the trust assets in accordance with the trust agreement. The trustee, who is the title-holder of the ownership, may be jointly and severally liable with the polluter because it assumes ownership of the land and is qualified as an Interested Party. However, the ownership through entrustment is a special type of ownership that is subject to the limitations set forth in the trust agreement, and is quite different from the general land ownership. It is somewhat questionable if the trustee shall be liable due to the “polluter pays” principle. In addition, the potential liabilities of the trustee will impact the creditor’ rights, the investment incentive, and the real estate market. This issue, therefore, must be treated seriously by the competent authorities. This Article will research on the issue in 4four parts: the 1st part will briefly introduce the regulatory scheme of the Act and the statutory liabilities of the Interest Parties. Part 2 will introduce and analyze the US regulatory scheme with summaries of certain milestone precedents. Part 3 will present legal analysis on the issues regarding determination of responsible party and scope of liabilities in connection with trustee liabilities. Part 4 will propose amendments to the Act based on the reasonings presented in this Article.