摘要
摘 要 承攬人抵押權制度，乃於民國十八年間基於農業生活型態，國家為施予經濟建設，促進社會繁榮，而效尤羅馬法上之「不以時間先後來評價，而依其原因來評價」之特權制度，遂制定民法第五百十三條承攬人抵押權，並予以「法定化」，成為法定抵押權，藉以保障勞動者之承攬人權益。民法修正前，承攬人抵押權之規定即存有許多爭議問題，未獲得解決；民國八十八年修正後，除解決定作人與金融機構授信融資之交易安全問題外，另增加諸項新生的爭議問題，頗值研究。 本文研究方法及流程，先以歷史研究法之觀點，考察舊法上承攬人抵押權之立法過程及立法者真意，及民國八十八年修法之起因與理由，藉以鑑往知來。同時，參引與承攬人抵押權制度相類似之日本不動產先取特權之立法例，以歸納法，歸納、整理並分析在研究期間所蒐集之具體實務案例，配合實證法，驗證、評量承攬人抵押權在實際上所遭遇之問題與其對社會之影響，資為深入探討、論述。 全文共分為七章，第一章緒論，概述研究之動機與目的及研究範圍與方法。第二章承攬人抵押權概論，先說明承攬人抵押權之意義、立法沿革、修正理由及解析，續對日本不動產先取特權之立法例作概述。第三章承攬人抵押權之性質，就修法後其「登記」性質，是「生效要件或對抗要件」作深入研究。第四章承攬人抵押權之成立要件，說明承攬人抵押權之法律關係、主體、客體、擔保債權範圍及其登記程序。第五章預為抵押權登記，首就預為抵押權登記之意義、登記程序與效力作論述；末就預為抵押權登記與預告登記作比較，解析其相同處與相異處。第六章相關問題研究，就實務上與學術上尚有爭議之問題作深入論述，共探討三個問題，一、承攬人抵押權之客體是否及於工作物之基地？二、增建部分是否為承攬人抵押權之效力所及？三、承攬人可否拋棄其法定抵押權？第七章結論，總結各章之論點，提出檢討及修法建議，俾對承攬人抵押權問題之解決有所助益。
並列摘要
ABSTRACT The mortgage system for contract undertakers was initiated in year 1929; based upon the agriculture life style the nation for the purpose of applying economic construction and encouraging the social prosperity adopted the privileged right of 「not assessed by the time before/after, but by the causation」from Roman Law and enacted the Civil Law Code number 513 for the mortgage of undertakers, and 「legalized」 it which became legitimate mortgage to protect the right of undertakers (the laborers). Prior to the amendment of Civil Law, there existed many unsolved issues on the regulations of undertaker mortgage, and after the amendment in 1999, besides the solution for secured transactions between the subscribers and the financial institutes for the credit loan, there also arose many new issues which were worth studying. The method and flow of this study are planed firstly from the point of view of history research to examine the legislation procedure and the true intention of the legislators in the old law, and also the causes and reasons of the amendment in 1999; learning from the history and foresee the future. In the meantime, taking reference of the legislature of Japanese real estate pre-obtain privilege which is similar to the system of undertaker mortgage, and using the induction method to induce、sort and analyse the concrete practical cases that were gathered during the research period of time, and to co-op with empiricism to verify and evaluate the encountered problems of the undertaker mortgage and its influence to the society, and all these will be explored and discussed. There are 7 chapters in this article. The first chapter is introduction which states generally the motive、purpose、study scope and methods. The second chapter is the summary of undertaker mortgage, firstly explain the meaning、legislation background、reasons for amendment and analysis of the undertaker mortgage, then making the general statements about the Japanese real estate pre-obtain privilege. The third chapter is the nature of the undertaker mortgage, making further study of the「registration」nature after amendment, on the subject of 「Is it a validity factor or resistance factor」. The fourth chapter is the establishing factors of undertaker mortgage, explaining its legal relationship、subjective body、objective body、guaranteed debt scope and its registration procedure. The fifth chapter is the pre-registration of the mortgage registration, firstly are the statements of the meaning、registration procedure and the effect of the pre-registration, then making the comparison of mortgage pre-registration and prophesy registration, analyzing the equivalence and the difference. The sixth chapter is the study of relating questions, making statements in depth on those pending issues practically and academically, and totally are three problems in discussion: 1) Dose the objective body of mortgage undertaker include the foundation land of the construction? 2) Are the new attachments also effectively included in the undertaker mortgage? 3) Could the undertaker abandon his statutory mortgage? The seventh chapter is the conclusion, concluding the issues in each chapter, issuing the discussion and amendment suggestions for the possible advantages to the solution for the problems of undertaker mortgage.