- 期刊
多數債權人體系之再構成
Reconstruction of the System of Plurality of Creditors
摘要
民法多數債權人規定可分債權、連帶債權及不可分債權，學說及法院尚承認協同債權、準共有債權及公同共有債權3個無名多數債權人型態。羅馬法不承認代理及債權讓與，連帶債權遂應運而生，現代，連帶債權鮮少實際運用，未必有存在的必要。給付可分，民法雖預設適用可分之債法則，基於同一契約而生之多數債權人，債權之行使仍須受契約之拘束，可分之債法則之推定，未必符合當事人之利益。給付不可分時，債權之行使有幾種可能性：第一、各得請求全部給付於自己，各債權人均有給付之全部受領權；第二、各得請求向全體給付，受領權屬於債權人全體；第三、債權之行使須全體共同為之。我國民法不可分債權法則採第二種規範模式，我國學說所理解的協同債權、準共有債權及公同共有債權無論給付性質上是否可分，均為法律上不可分，在債權之受領方面，均得適用民法第293條之規定，至於債權人間之內部關係及債權之歸屬關係，則依多數債權人所由發生之法律或契約定之。至於債務人及全體債權人約定，債權之行使須共同為之，以共同帳戶最為重要，並非我國學說所理解的協同債權，基於契約自由原則，債權之行使當受約定之限制。
並列摘要
In addition to divisible claims, solidary claims, and indivisible claims, which Taiwan Civil Code expressly provides for the plurality of creditors, legal theory and courts recognize co-owned claims, joint co-owned claims, and coordinate claims. Roman law did not recognize agency and assignment of claims, so solidary claims functioned instead. Nowadays, solidary claims are rarely used in practice and are superfluous. Where performance is divisible, and neither the contract nor the law provides for the application of different types of plurality, the divisible claims rule should apply. Even so, the exercise of the claim based on a contract is still to be bound by that particular contract, and the presumption of the rule of divisible claims may not be in the interests of the parties. When the performance is indivisible, there are several possibilities for the exercise of the claim: first, each creditor has the right to claim for himself the whole performance; second, each may request the debtor to perform to all creditors, and the right to receive belongs to all creditors; third, the exercise of claims must be done jointly by all. The rule for indivisible claims under Taiwan Civil Code adopts the second model. This essay holds that Article 293 of Taiwan Civil Code is applicable for the co-owned claims, the joint co-owned claims, and coordinate claims, which are legally indivisible regardless of whether they are divisible in the nature of the performance. The internal relationship between creditors and the attribution of claims shall be determined by the law or contract arising from the plurality. Where there is an agreement between the debtor and the creditors that the exercise of claims must be done jointly, the most important example being the common banking account, Article 293 of Taiwan Civil Code applies but for that regard.