法學期刊.
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論著名稱: 遺產共同所有性質之研究(The Study On Co-ownership Of Inheritance)
編著譯者: 黃淳鈺
出版日期: 2011.03
刊登出處: 台灣/真理財經法學第 6 期 /127-159 頁
頁  數: 32 點閱次數: 273
下載點數: 128 點 銷售明細: 權利金查詢 變更售價
授 權 者: 真理大學財經法律學系 授權者指定不分配權利金給作者)
關 鍵 詞: 遺產之共有公同共有分別共有
中文摘要: 遺產之共同所有究採取分別共有說或公同共有說,是立法選擇上的問題, 而非本質上只能採取何者。選擇分別共有說, 益處在於各繼承人得自由處分其對於一個一個財產上的持分,而選擇公同共有說,則較能達成分割之公平性與保護債權人、債務人。至於遺產是不是「直接」歸屬於各繼承人,與採何說並無實質上的關係,即使採分別共有說合併宣言主義,為保護受處分利益之第三人及受限於各種財產之特質,宣言主義難免只剩下口號,而無其實質。
選擇分別共有說,使各繼承人得自由處分其對於一個一個財產上的持分,不但容易使法律關係複雜,易生綁架遺產分割方法之結果,即使遺產分割方法未被綁架,然而在遺產分割後,亦徒增共有,似乎與民法盡力消滅共有之要旨不合。為使各繼承人不至長期陷於共有的泥沼中,除採取分別共有說,使各繼承人得為上述之處分外,本文認為,德國民法第 2033 條之立法例甚為可採,其不但採取公同共有說,故具備公同共有說之優點,又在不違背公同共有本質的情況下,允許持分之處分,又該持分之處分在遺產分割後,並不造成徒增共有的結果。然而在無相關配套措施下,則不得貿然採行。
至於採行分別共有說在一物一權主義方面較無爭議,而採公同共有說,則由於持分之抽象性,在理論上其標的甚為複雜,然而實際操作上,應不成問題。
英文關鍵詞: The inheritance altogether hasAltogether has commonCo-ownership
英文摘要: When there are several heirs, whether they have ownership of the inheritance in proportion to their own respective shares or own the deceased's property in common before its partition, it is the matter of legislative option, not because the heirs should choose either way essentially. The advantage of selecting the theory that the heirs have ownership of the inheritance in proportion to their own respective shares is every heir may freely dispose of his own share. However, choosing the theory that the heirs own the deceased's property in common before its partition could approach the justice of partitioning and protect both credit and debtor. As for whether the inheritance belongs to the heirs straight or not has no practical relevance to what kind of theory has been chosen. Even selecting the theory that the heirs have ownership of the inheritance in proportion to their own respective shares and declare the combination, in order to protect the third party who get the benefit by disposing of the property and because of the limitations of each property’s characteristic, this declaration becomes nothing but a slogan without meaning.
Choosing the theory that the heirs have ownership of the inheritance in proportion to their own respective shares makes every heir may dispose of his own share, it not only makes the legal relationship become complicated, but also results in making the methods of inheritance partition become useless. Even without this negative influence, new kind of having property in common is established after the partition, it seems against the purpose of reducing the ownership in common which is also the intention of Civil Law. In order to let every heir escape from being stuck in the long-term mire of owning property in common, except for choosing the theory that the heirs have ownership of the inheritance in proportion to their own respective shares to make every heir may dispose of the property, in my humble opinion, the Article 2033 of Civil Law in Germany is worth reference, it not only selects the theory that the heirs own the deceased's property in common before its partition, so it has such theory’s advantage , but also allow the heirs dispose of their own respective shares without disobeying the essence of having property in common before its partition. Moreover, disposing of heirs’ own respective shares does not cause another new kind of having property in common after the partition of the inheritance. This should not be considered rashly in the situation of having no supplementary measures, though.
As for taking the theory that the heirs have ownership of the inheritance in proportion to their own respective shares has less arguments about the theory that one thigh only has one ownership. On the contrary, taking the theory that the heirs own the deceased's property in common before its partition makes the ownership become complicated theoretically, but there should be no problems to put it into practice.
目  次: 壹、問題之提出
貳、遺產共同所有之性質
一、遺產分別共有說
二、公同共有說
參、問題之考察
一、公同共有之標的物
二、遺產公同共有與公同共有本質上之差異
三、宣示主義是否與公同共有說有所干戈
四、限定繼承與公同共有
五、遺產之公同共有持分之處分
肆、結語
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