- 學位論文
公同共有債權及其行使之研究
A Study on the Creditor’s Right in Common and its Exercise
摘要
公同共有債權人如何行使權利，能否單獨起訴？實務原本見解分歧，嗣後最高法院在104年第3次民事庭會議決議認為公同共有債權人起訴請求債務人向全體共有人履行債務，屬行使公同共有債權，並強調此非回復公同共有債權之請求，否定民法第821條規定之準用，應準用第828條第3項，由全體公同共有人為之，在訴訟上構成固有必要共同訴訟，應全體一同起訴。 本文先區別共有債權與可分、不可分之債的差異，共有債權具共有歸屬關係且屬單一之債，與可分、不可分債權有所不同。因此分別共有債權應優先適用物權編規定，依民法第831條準用分別共有之規定。而分別共有債權之行使，由於分別共有關係之應有部分係存於共有債權之任何部分，故分別共有人不得請求債務人給付予個人，債務人僅得給付予全體共有人，而共有債權與共有物同屬財產權，應作相同對待，透過準用第821條，利用該條之請求力，由各分別共有人單獨請求債務人給付予全體共有人，也並未破壞債之相對性，應認分別共有債權得準用第821條。 至於公同共有債權之行使，依民法第831條準用民法第828條第3項規定，除法律另有規定外，其權利之行使原則上應得全體公同共有人之同意，然而得否準用第821條由公同共有人單獨行使？既然分別共有債權得準用民法第821條，則公同共有債權得否準用之核心在於公同共有與分別共有之差異，應回歸公同共有關係之本質進行解釋，由於公同共有係由多數人基於公同共有目的所形成之共同體，並受共同意思所支配，其權利之行使必須一致，若準用分別共有規定，將破壞公同共有之本質，故不應準用第821條，而應一概準用第828條第3項，由公同共有人全體共同行使，始能維護公同共有共同體及共同體成員之法律地位，在訴訟上則形成固有必要共同訴訟，須由全體公同共有人一同起訴。
並列摘要
How the creditors-in-common exercise the right, is a separate suit allowed? In practice, the judicial opinions were divided, but then at the the 3rd Resolution of 2015, the Taiwan Supreme Court affirmed that the creditors-in-common brought an action to claim debtors to perform the obligation for all creditors-in-common is an exercise of the creditor’s right that the creditors own in common. The Resolution emphasized that the proceeding is not to restore the creditor’s right and this situation shall apply mutatis mutandis to the third paragraph of Article 828 of the Civil Code instead of the Article 821. The exercise of the creditor’s right shall be made with the consent of all the creditors-in-common. In litigation, this amounts to Necessary Common Inherence Legal Action which means all of the creditors-in-common must jointly appear as plaintiffs in such an action. This research first distinguishes the difference between each co-creditor’s right, creditor's right in common, and divisible creditor’s rights and indivisible creditor’s rights. The each co-creditor’s rights has each co-owner relationship and is a single debt, which is different from divisible and indivisible creditor's rights. Therefore, the each co-creditor's right should have priority in applying the regulations of rights in rem of the Civil Law. According to the Article 831, the provisions of Article 817 to 826-1 shall apply mutatis mutandis to the each co-creditor's right. Because the share of the each co-creditor's right is stored in any part of the creditor’s right, each co-creditors shall not demand the prestation to some co-creditors and the debtor shall only tender the performance to all of the co-creditors. Since the co-creditor’s right and the thing held in indivision belong to property rights, they should be treated in the same way. By applying mutatis mutandis to Article 821, each co-creditor with the claim of this Article can solely demand the debtor to perform to all of the co-creditors without destroying the privity of contracts. Therefore, it should be recognized that the provisions of Article 821 can be applied to each co-creditor’s right. As for the creditor's right in common, pursuant to Article 831 and the third paragraph of Article 828, unless otherwise provided by statutes, the exercise of the creditor’s right shall be made with the consent of all the creditors-in-common. However, the issue is whether the exercise of the creditor’s right in common can apply to the provisions of Article 821. Since the provisions of Article 821 can be applied to each co-creditor’s right, the core of whether the provisions can be applied to creditor's right in common is the difference between each co-owner and ownership-in-common. This should be explained by returning to the essence of the ownership-in-common. The ownership-in-common is a community formed on the basis of the common purpose and governed by the common will which means the exercise of its right must be consistent. If the exercise of the creditor’s right in common apply to the provisions of Article 821, it will destroy the essence of the ownership-in-common. Therefore, the exercise of the creditor’s right in common shall not apply to the provisions of Article 821, but to the third paragraph of Article 828. It shall apply the principle of the conjoint disposition which means the consent of all the creditors-in-common. In litigation, this forms Necessary Common Inherence Legal Action which means all of the creditors-in-common must jointly appear as plaintiffs in such an action.