共有物變價分割與民法第425條之1之適用－最高法院107年度台上字第879號判決評釋－

共有土地分割後，由共有人原於土地上所營造之房屋，應如何處理，良非易事。當共有土地採行變價分割之方法時，如房屋所在基地歸他共有人取得者，是否即屬無權占有，而需拆屋還地。民法第425條之1之適用與否係屬重要關鍵之一，最高法院近期已逐步承認房屋或土地「共有」（如土地共有人數除與房屋相同共有人外，尚有其他共有人）亦有其適用。於此架構下，最高法院107年度台上字第879號判決，以瑕疵擔保及分管契約終止之立論，否認該條之適用，似有未盡週延之處。民法第824條第7項之優先承買權，及為保存房屋而採原物分割優先變價分割之原則，能扮演何種補充之功能，是為本文論述之核心。

關鍵字

共有物；變價分割；推定租賃；法定地上權；優先承買；分管契約；瑕疵擔保

並列摘要

When a piece of land held in indivision is partitioned, the houses originally built on top of it by the co-owners of that land become an issue to handle. Case in point, as we deal with a land held in indivision is partitioned by sale and distribution, and the base of a house is also acquired by other co-owners. Whether that house is entitled to possess attracts attentions. Does the house have to be demolished and returned to the co-owners, respectively? Whether article 425-1 of the civil law is applicable is a key factor to evaluate. The Supreme Court has recently gradually recognized that either a house or a land held in indivision can be jointly owned by applying article 425-1. (e.g.: The co-owners of the land other than those of the house are still applicable to share ownership of the house.) Nevertheless, Supreme Court's verdict in the 107th year labeled as Tisun character the 879th seems to deny the applicability of article 425-1 by arguing the theory of the warranty of defects and the conclusion of the separate-management convent. This stance is worth further evaluating. The author argues that the principle of priority purchase right in article 824, paragraph 7, and the priority principle of partition of the thing held in indivision itself than by sale and distribution for the preservation of the house, can play a complementary function in this regard, which is the main focus of this research paper.