默示分管契約之研究

實務上涉及分管契約之案件數量繁多，處理上亦存有諸多爭議，而就現今學說之討論觀之，其探討者多聚焦於分管契約之效力。惟近來30年，實務上亦發展出「默示分管契約」之概念，就此概念之要件設定以及適用情形，至今仍未形成統一之判定標準，其概念本身之妥適性與必要性亦有可待討論之處，然學說上少見就此部分之詳細探討，實有整理說明之必要。故本文主要以「默示分管契約」為探討主軸，並以我國實務判決作為討論核心，透過蒐集最高法院針對默示分管契約所為之相關判決，進行整理分析研究，並從中歸納出最高法院對此概念之建構過程，就相關理論基礎進行討論分析。　　本文於第二章中，先就共有之概念為前置性介紹，並整體說明我國現今就共有所採之「分別共有」與「公同共有」之法律規範制度。第三章則進入分管契約基本理論之介紹，首先就分管契約之意義予以檢討，學說、實務上對分管契約之定義要件各有偏重，依本文所見，應以「共有人間約定各自分別就共有物之特定部分而為管理之契約」作為定義較為恰當。接續為成立與性質之討論，分管契約之成立首重於全體共有人之合意，其成立方法並無要式性要求，亦不以占有為其成立要件，且以明示或默示方法成立均無不可；而性質上，本文認為分管契約為一債權契約，屬於共有物管理契約子類型之其一，且同時兼有用益歸屬分配契約與不分割協議之特性。在分管契約之效力檢討上，歷來判決實務與司法解釋均肯認其於特定情形中，得對第三人發揮效力，於民國98年更修訂民法第826條之1規定，將分管契約之效力規定明文化；惟本文認為現行法就動產之規定仍以第三人是否知悉或可得而知作為對第三人發生效力之對抗要件，欠缺一明確公示方法，該要件並不足以作為效力突破相對性之依據，現今規範模式實有不妥；此外，除卻民法規定外，公寓大廈管理條例之修訂亦對其效力產生影響，實務因應標的不同區分其適用，亦致使分管契約於適用範圍上有所分流。在分管契約與專用權約定概念之比較討論中，本文認為功能上雖存有相似之處，惟自適用主體、客體、成立方式、生效要件與用途等面向觀察，兩者均存有差異，實應將其視為各自獨立之法律概念，而非將專用權約定歸類於分管契約之下位類型。　　本文第四章則對於默示分管契約之發展概況與其理論基礎進行整理分析。就默示分管契約之實務發展概況，本文分別自發展時序與類型建立兩面向切入，時序發展上，本文爬梳整理最高法院歷來就默示分管契約所為之判決，將其依實務上發展歷程時序，區分為否定階段、濫觴、猶豫階段、發展階段、擴充階段以及現今實務所處之限縮階段。而在類型建立上，本文認為可將其分為區分所有建物案件與土地案件，兩者不僅在適用標的不同，在實務歷程上之出現時點、發展趨勢，亦或是實務認定成立之標準寬嚴，其間亦存在差異。而在默示分管契約之理論基礎分析上，實務就此概念之建構是將其定性為契約，並認定相關事實構成默示方法予以適用。惟本文自「默示方法」、「契約」概念予以分析探討，認為在學理上分管契約並無法由默示方法所成立；且在實際適用上，實務本即可透過既有明示分管契約之概念妥適處理相關案件；故實務上額外創設默示分管契約之概念，依本文所見，實欠缺學理上妥適性與適用上必要性。

關鍵字

分管契約；分管約定；默示；專用權約定；民法第820條

並列摘要

The number of cases involving separate-management contract in court decisions is large, and there are many disputes over their handling. In the past 30 years, the concept of "Implied Separate-Management Contract" has also been developed in court decisions. However, there is still no uniform standard for the determination of the elements and application of this concept. The appropriateness and necessity of the concept itself are also open to discussion, but there is little detailed discussion of this part in scholars, so it is necessary to organize and explain it. Therefore, this paper focuses on the "Implied Separate-Management Contract" as the main axis of discussion, and uses the court decisions in Taiwan as the core of the discussion. By collecting the relevant decisions of the Supreme Court against the implied separate-management contract, we summarize the process of the Supreme Court's construction of this concept, and discuss the theoretical basis for it. 　　The second chapter of this paper first introduces the concept of co-ownership, and explains the current legal regulation system of "Co-Ownership" and "Ownership-In-Common" in Taiwan. The third chapter of this paper introduces the basic theory of the separate-management contract. First of all, we review the meaning of the contract. The definition of the contract has different emphases in scholars and court decisions, but in our opinion, a more appropriate definition is "a contract between the co-owners to manage a specific part of the common property separately. The establishment of the contract is based on the consent of all the co-owners, and the method of establishment does not require formality, nor does it require possession as an element of its establishment, and it can be established by express or implied method. The nature of the contract is considered to be a contract of obligation, and is one of the subtypes of contract about management of shared property, and has the characteristics of both a usufruct distribution contract and an undivided agreement. With regard to the review of the validity of the contract, both the court decision and the judicial interpretation have recognized that it can be effective against third parties under certain circumstances. However, this paper believes that the current law on movable property still relies on whether the third party knows or can know as the element of resistance to the third party's validity. The lack of a clear method of publicity is not sufficient as a basis for the effect of breaking the doctrine of privity. The current model of regulation is still inappropriate. In addition to the Civil Code regulations, the amendments to Condominium Administration Act Building Administration Division also have an impact on their validity. The distinction of the application of the court decisions depending on the subject matter also results in a divergence in the scope of application of the separate-management contract. In the comparative discussion of the concepts of separate-management contract and the exclusive rights contract, this paper believes that although there are functional similarities, there are more differences between the two in terms of the applicable subject matter, object, method of formation, elements of entry into force, and use. Therefore, they should be regarded as separate legal concepts, instead of classifying the exclusive rights contract as a subordinate type of the separate-management contract. 　　The forth chapter of this paper presents an overview of the development of the implied separate-management contract and its theoretical foundations. With regard to the court decisions development of implied separate-management contract, this paper focuses on the chronology of their development and the establishment of their types. In terms of chronological development, this paper summarizes the Supreme Court's historical decisions on implied separate-management contracts and divides them into the Negative Phase, the Origin Phase, the Hesitation Phase, the Development Phase, the Expansion Phase, and the Limitation Phase, which the current court decision is located. In terms of type establishment, this paper believes that a distinction can be made between the condominium cases and land cases, as they differ not only in terms of the applicable subject matter, but also in terms of the point of emergence, the trend of development, and the standard of establishment in court decisions. In the analysis of the theoretical basis of the implied separate-management contract, the way court decisions construct this concept is to characterize it as a contract and to recognize the relevant facts as constituting an implied method of application. However, this paper analyzes the concepts of "implied method" and "contract" and concludes that, in theory, a separate-management contract cannot be established by implied method; moreover, in court decisions, the existed concept of express method can be used to handle relevant cases more appropriately. Therefore, according to this paper, the creation of the concept of implied separate-management contract in courts lacks theoretical appropriateness and necessity of application.