2019年民事法發展回顧

本文認為，違章建築具有之事實上處分權，不應准許其「類推適用」民法第767條第1項規定向無權占有之被告請求返還，蓋該處無法律漏洞可言。更重要者係，違章建築不應構成習慣法物權而成為民法第184條第1項權利所保護的對象，從臺灣建築法的整體規定，也可以看出，法律並不賦予違章建築財產權存續狀態之保障。此外，最高法院指標判決也誤認了給付型不當得利所受的「占有本身」可以作為非給付型態不當得利所受利益之內容（＝返還之客體），故事實上處分權人縱然依據民法第179條不當得利請求權，仍然無法請求被告返還其無權「占有」之違章建築「本身」，簡言之，違章建築之事實上處分權人僅得享有民法第962條之占有物返還請求權保護。有關寵物被害與飼主精神慰撫金請求之判決，本文認為，參考動物保護法第3條第5款規定之精神與寵物特性，司法者或可考慮透過「制定法外法律續造」之層次進行法官造法，賦予僅限於寵物為「犬及貓」二者之飼主得請求精神慰撫金者，並且在個案中由被害人舉證證明其具備法益侵害「情節重大」之要件，給予較低於以「人」為主體之人格權或身分權受侵害時，精神慰撫金賠償之保障。

關鍵字

違章建築；習慣（法）物權；不當得利；財產權；寵物；動物；飼主；精神慰撫金

並列摘要

This article believes that the factual right of disposal of illegal buildings should not be allowed to ＂apply by analogy＂ Article 767 to request return from the defendant who has no right to possess. Because there is no legal loophole in this place. More importantly, illegal buildings should not constitute property rights out of customary law and become the objects of protection under Article 184, Item 1 of the Civil Law. From the overall provisions of the Taiwan Construction Law, it can also be seen that the law does not grant the existence of property rights in illegal buildings. Regarding the protection of the status, the Supreme Court's index judged whether to use ＂property rights＂ or ＂customary law property rights＂ as the subject of tort protection, which I cannot agree with. In addition, the Supreme Court's index judgment also misunderstood that the ＂possession itself＂ received by the payment-type improper gains can be used as the content of the benefits received by the non-payment-type improper gains (= the object of return), so in fact, the disposition right holder is based on it Article 179 of the Civil Law still cannot request the defendant to return the illegal building ＂itself＂ that he does not have the right to ＂possess＂, but can only request the return of the interest equivalent to the calculation of rent that he has received because he has no right to occupy the illegal building. In short, the person with the de facto right to dispose of an illegal building can only enjoy the protection of the right to request the return of possession under Article 962 of the Civil Code. Regarding the judgment of pet victims and pet owners' request for spiritual comfort, this article believes that with reference to the spirit and characteristics of pets stipulated in Article 3, paragraph 5 of the Animal Protection Law, the judicial authorities may consider making judgements through the level of ＂enacting extra-legal legal continuation＂ The method is limited to those whose pets are both ＂dogs and cats＂ pet owners who can request spiritual comfort payments, and in the case the victim proves that they have the ＂significant circumstances＂ of legal interest infringement. When the subject's personality or identity rights are infringed, the protection of compensation for spiritual comfort money should be given.