- 期刊
無權占有他人土地之不當得利返還主體－最高法院111年度台上字第610號民事判決之啟發
The Return Obligor Having no Right to Occupy Others' Land: Comments on Supreme Court Judgment of 2022 Tai-Shan-Zi No. 610
摘要
我國民法將土地及房屋異其所有，故於土地與房屋非屬同一人所有時，房屋存續於土地之權限，乃成為民法重要之課題。當土地遭他人無權占有興建房屋時，土地所有人除得對於房屋所有人主張所有物返還請求權及不當得利返還請求權外，若房屋所有人再將房屋出租或交由占有人有權占有時，土地所有人是否尚得對房屋占有人請求不當得利，成為近年來司法實務常見困擾之問題。最高法院近年來透過數則判決，認為土地所有人僅得向房屋所有人請求不當得利，不得向房屋占有人主張，係採「直接排除競合」型，但實務上事實審法院亦多有採取「共同債務」型或「不真正連帶債務」型，其見解是否一致，內容是否妥適，值得探討。本文認為就不當得利之構成要件來說，不論是房屋所有人或占有人，對於土地所有人而言，均構成權益歸屬之不當得利，最高法院採取「直接排除競合」型，逕以排除土地所有人對房屋占有人之不當得利請求權，對土地所有權人之保護不足，似有未洽，應視個案情形，採「共同債務」型或「不真正連帶債務」型，並依占有之利益與狀態，分別判令返還占有本身與占有利益。此外，就「不真正連帶債務」型之適用，為了避免不真正連帶債務人間「先賠償先吃虧」之不公平，在內部關係上宜類推適用民法第280、281條規定，依人數平均分擔，並於清償後肯認得行使內部求償權。
並列摘要
Taiwan civil law distinguishes the ownership between land and houses, therefore, the right of houses to stand on the land becomes an important issue in Taiwan civil law. If the house dweller has the right to legally occupy the house, but the house has no right to occupy the land; in addition to claiming the return of the land and unjust enrichment against the house owner, whether the land owner can also claim the unjust enrichment against the house dweller is still a crucial issue in Taiwan legal practice recently. Currently, some of the judgments made by the Taiwan Supreme Court held that the land owner can only claim the unjust enrichment against the house owner, but not the house dweller. Obviously, it's an "Exclusion" model (holding that the right of the land owner to claim the unjust enrichment against the house dweller is excluded). However, there are also some judgements held the "Common obligation" model or the "Quasi-Joint and several liability" model (holding that due to the common obligation or the quasi-joint and several liability between the house owner and dweller, the land owner also has the right to claim the unjust enrichment against the house dweller). It is worth to discuss whether the three models are appropriate. This article suggests that both the house owner and the dweller constitute unjust enrichment for the land owner, both of them should return their possession and the possession interest gained from their possession status. Thus, this article suggests the "Exclusion'' model is not appropriate, and prefers to adopt the "Common obligation" model or the "Quasi-Joint and several liability" model. Moreover, in order to avoid the unfairness that "whoever compensate first, who loss out first", it is considered appropriate to apply Article 280 and 281 of the Taiwan Civil Code by analogy. That is, the compensation paid to the land owner should share equally among the house owner and dweller, and the one who compensate the first is entitled to demand from the other debtors the reimbursement of their respective shares.