| 摘要: | 最高法院108年度台再字第3號民事判決對於強制執行法第51條第2項之詮釋產生了重大誤解，導致拍定人可代債權人主張強制執行法第51條第2項，排除土地法第104條及民法第426條之2之優先承買權人之承買權。首先對於得主張強制執行法第51條第2項之主體，從文義解釋上，僅見債權人得對債務人主張「其他有礙執行效果之行為，對於債權人不生效力」，實務見解及學者對於債權人又以目的性擴張解釋及於強制執行程序中參與之債權人，然最高法院94年度台上字第1924號判決認為所謂債權人，解釋上應係指強制執行之債權人及拍定人。本判決採債權人包含拍定人之見解將產生以下問題（一）實務見解認為不將債權人之解釋包含拍定人，將造成債權人及債務人之損害，惟何以見得，不得而知。（二） 若拍定人不能主張債務人違反查封效力之行為對其不生效力，勢必影響投標意願，惟從強制執行之拍賣性質出發，多數見解採私法說，拍定乃係對私法上買賣之要約為承諾，故拍定人對於拍賣條件為承諾之意思表示，即無存有影響投標意願之可能。（三）鑑價過程已將地上物存於查封土地上之不利因素納入考量，反映在起拍價格，拍定人拍定後得代債權人主張本法第51條第2項，使土地經濟效用提高，債權人與債務人似無享其排除防礙利益。（四）優先承買權人遭排除先買權，將造成危害社會經濟之情形。是故本文認為本判決之見解係屬邏輯謬誤，已屬違背法律規定，而有適用法律不當之嫌。
The interpretation of Article 51, Paragraph 2 of the Compulsory Enforcement Act by the Supreme Court in Civil Judgment of 108 Tai Zai Tzu No.3 （108年度台再字第3號） has resulted in a significant misunderstanding which has led to the erroneous assertion that auction winner may exclude the preferential right to purchase from such right owner under Article 104 of the Land Act and Article 426-2 of the Civil Code, by invoking Article 51, Paragraph 2 of the Compulsory Enforcement Act.
In terms of the subject that may assert the rights under Article 51, Paragraph 2 of the Compulsory Enforcement Act, by using of literal interpretation method, it is only the creditor who discovers that the debtor's "other acts that impede the effectiveness of execution are not binding on the creditor" that may make such a claim. However, the court's interpretation and scholars' understanding of the interpretation of the term "creditor" adopt a "objectiveness-expansion-interpretation method" which includes creditors participating in the compulsory execution procedure. Nonetheless, the Supreme Court in Judgment of 94 Tai Sun Tzu No.1924 （94年度台上字第1924號） holds that the term "creditor" in the interpretation should refer to "creditors in compulsory execution" and " auction winner."
This judgment adopts the view that the creditor includes the auction winner raises the following issues: 1. The court considers that excluding the auction winner from the interpretation of the term "creditor" would cause harm to both the creditor and the debtor, but the reasons for such interpretation are not known. 2. If the auction winner cannot assert that the debtor's actions violating the effectiveness of the attachment are not binding on the auction winner, it will inevitably affect the willingness to bid. However, considering the nature of auction in compulsory execution, most interpretations adopt the "private theory" and consider the auction as an offer for a private sale, with the auction winner expressing its acceptance and intent to be bound by the auction conditions. Therefore, it is believed that there is no possibility of affecting the willingness to bid.
3.The appraisal process has already taken into consideration the adverse factors of the existence of objects on the attached land, which is reflected in the starting price of the auction. After the auction, the auction winner may assert the rights under Article 51, Paragraph 2 of the Compulsory Enforcement Act on behalf of the creditor, thereby enhancing the economic utility of the land. It appears that the creditor and the debtor do not enjoy the benefit of exclusion from obstacles.
4.Excluding the preferential purchaser's right of priority right to purchase will result in harm to the socio-economic. Therefore, this study believes that the reasoning of this judgment is logically flawed, violates legal provisions, and is suspected of improper application of the law. |
