- 學位論文
強制執行不動產換價程序之研究
The Research of Exchange-to-Cash Procedure by Compulsory Execution on Real Properties
摘要
對不動產執行為債權人實現其金錢債權所選擇之一種執行標的，不動產執行程序第一階段為查封，即禁止債務人處分其特定不動產；第二階段為換價，不動產之換價方式有拍賣及強制管理，實務不動產拍賣以投標之方法行之，本文即研究、探討關於強制執行之不動產換價程序。 拍賣之不動產須先經查封，再鑑定不動產價格、鑑定報告回復後詢價，繼而定拍賣公告條件及拍賣期日，拍賣期日應先期公告，實務執行法院以投標之方法為拍賣，投標人須於開標前繳納保證金並將投標書密封投入執行法院所設之標匭，開標後倘拍賣之不動產無人應買或應買人所出之最高價未達拍賣最低價額，而到場之債權人於拍賣期日終結前亦未聲明承受，則由執行法院定期再行拍賣，進入第一次減價拍賣，倘經二次減價拍賣不動產仍未拍定，債權人不願承受或依法不得承受時，執行法院應於第二次減價拍賣期日終結後10日內公告願買受不動產者，得於公告之日起3個月內依原定拍賣條件，即第二次減價拍賣之拍賣條件，為應買之表示，此稱特別變賣程序。由於特別變賣程序須於公告之日起3個月內為應買之表示，與以投標之方法拍賣不動產應於指定拍賣期日、指定場所公開競標不同；且特別變賣程序見強制執行法僅規定於第80條之1第2項及第95條第1項，相較於一般拍賣程序規範並未周全，致實務衍生許多問題，本文將深入探討。 特別變賣程序公告3個月無人應買或特別變賣程序後之減價拍賣無人應買，債權人不願或不得承受，依法視為撤回不動產執行，執行法院對於未經假扣押或假處分之不動產撤銷查封，債權人為避免債務人於執行法院撤銷查封結案後，嗣後即將其不動產移轉予第三人，故短期內再次向執行法院聲請執行同一債務人之同一不動產，是否應限制債權人再聲請執行債務人不動產應間隔之期間，有何方法得以解決此問題，本文將討論不動產拍賣之界限，並提出建議作為實務解決問題之參考。
並列摘要
For creditor, the execution against real properties is creditor’s option of object of execution to fulfill creditor’s money obligatory right. The first step of real properties enforcement procedure is “Sequestration” which means that it bans the disposition of debtor for debtor’s specific real properties. The second step is “Exchange-to-Cash” which options include auction and compulsory administration. The real property auction on practice is dealt by tender. This article is to research and investigate the exchange-to-cash procedure of real properties by compulsory execution. The tender procedures ofreal properties are like that it is sequestrated by the court first, expert examined the market price, asked to accept or not from both creditor and debtor after getting the appraisal report, set up the terms of sale for public auction notice, and then finalized an auction date. However, the auction date should be announced in advance. The execution on practice of a tender is to bid handled by court. The bidders have to pre-pay the security deposits, and then put the closed sealed bidding documents into the bidding box. If there are no potential buyers or the bidding price is under the estimated price after bid, and also the creditor is not willing to bear this estimated price before the end of bid, the executive court will have a second tender procedure with a deductive price compared to first time tender thereafter.If the real properties still do not go under the hammer after second time tender and the creditor has still no will to /cannot bear, then it goes to be announced to the potential buyers within 10 days after auction date of second tender. The potential buyers should have to apply for their willingness to buy for the pending real properties within 3 months after announced date in accordance with the terms of sale of second time tender. Hence, we say it as “Special Selling-Off Procedure”. In public auction of real properties, the Special Selling-Off Procedure which means to appear buyers’ willingness to buywithin 3 months after announced date of second tender procedure is different from the standard auction procedure which means public tender in a fixed date and place. Moreover, the Special Selling-Off Procedure is listed in Art.80-1(2) and Art.95(1) of Compulsory Enforcement Act which has not strictly ruled compared to standard auction procedure. Therefore, it is derived a lot of questions on practice. This is what we will investigate deeply. In the following conditions, the court has to quash the execution of real properties by law. Firstly, if there are no buyers within 3 months of announced date in the period of the Special Selling-Off Procedure. Secondly, if there are no buyers in the deductive price auction or the creditor has no will to /cannot bear after the Special Selling-Off Procedure. Afterward, the executive court will quash the sequestrated real properties if without provisional seizure or provisional disposition. To avoid the debtor transfers the real properties to third party after the court quashes the sequestration, the creditor will re-declare the execution upon the same debtor and same real properties in a short period. Do we need to limit the length of interval period for the re-declaration by the creditor? And how to solve it? This article will discuss the underline of real property auction and submit the suggestion for solving the practical cases.