重要實務
【高雄-帝謙法律事務所/土地重要實務(45)】內政部就公同共有不動產應有部分讓與之命令違憲。
2014.4.17 高雄律師-楊岡儒律師
發文單位：司法院
解釋字號：釋字第562號
解釋日期：民國92年7月11日
解釋爭點：內政部就公同共有不動產應有部分讓與之命令違憲？
資料來源：
司法院公報 第 45 卷 8 期 37-44 頁
司法周刊 第 1142 期 1 版
司法院大法官解釋（十六）（99年5月版）第 135-146 頁
考選周刊 第 924 期 2 版
法令月刊 第 54 卷 8 期 93-94 頁
總統府公報 第 6540 號 27-42 頁
法務部公報 第 312 期 35-42 頁
相關法條：
民法 第 819、820、828、830 條 ( 91.06.26 )
土地法 第 34-1 條 ( 90.10.31 )
土地法第三十四條之一執行要點 第 12 條 ( 91.10.30 )
解釋文：
土地法第三十四條之一第一項規定：「共有土地或建築改良物，其處分、變更及設定地上權、永佃權、地役權或典權，應以共有人過半數及其應有部分合計過半數之同意行之。但其應有部分合計逾三分之二者，其人數不予計算。」同條第五項規定：「前四項規定，於公同共有準用之。」其立法意旨在於兼顧共有人權益之範圍內，促進共有物之有效利用，以增進公共利益。同條第一項所稱共有土地或建築改良物之處分，如為讓與該共有物，即係讓與所有權；而共有物之應有部分，係指共有人對共有物所有權之比例，性質上與所有權並無不同。是不 動產之應有部分如屬公同共有者，其讓與自得依土地法第三十四條之一第五項準用第一項之規定。內政部七十七年八月十八日臺（镲）內地字第六二一七六七號函頒 修正之土地法第三十四條之一執行要點第十二點規定：「分別共有土地或建物之應有部分為數人所公同共有，公同共有人就該應有部分為處分、變更或設定負擔，無 本法條第一項之適用」，於上開範圍內，就公同共有人公同共有不動產所有權之行使增加土地法上揭規定所無之限制，應不予適用。
理由書：
共有乃一物之所有權由二人以上共同享有之制度，係基於社會生活需要而存在，然各共有人因均享有同一之所有權，其權利之行使遂受相互之限制（民法第八百十九條第二項、第八百二十條、第八百二十八條參照），自不免影響共有物用益及處分之順利進行，甚而有礙共有物之自由流通，致生社會經濟上之不利益。土地法第三十四條之一第一項至第五項規定：「共有土地或建築改良物，其處分、變更及設定地上權、永佃權、地役權或典權，應以共有人過半數及其應有部分合計過半數之同意行之。但其應有部分合計逾三分之二者，其人數不予計算。」「共有人依前項規定為處分、變更或設定負擔時，應事先以書面通知他共有人；其不能以書面通知者， 應公告之。」「第一項共有人，對於他共有人應得之對價或補償，負連帶清償責任。於為權利變更登記時，並應提出他共有人已為受領或為其提存之證明。其因而取得不動產物權者，應代他共有人申請登記。」「共有人出賣其應有部分時，他共有人得以同一價格共同或單獨優先承購。」「前四項規定，於公同共有準用之。」其立法意旨係在於兼顧共有人之權益範圍內，排除民法第八百十九條第二項、第八百二十八條第二項規定之適用，以便利不動產所有權之交易，解決共有不動產之糾紛，促進共有物之有效利用，增進公共利益。
按應有部分乃共有人對共有物所有權之比例，性質上與所有權本無不同；而土地法第三十四條之一第一項所稱共有土地或建築改良物之處分，係與變更及設定地上權、永佃權、地役權或典權併列，是所謂共有土地或建築改良物之處分，就讓與該共有物言，即係讓與其所有權，共有物其他物權之讓與，亦屬該物權之處分。況公同共有不動產應有部分之讓與，若得準用土地法上揭第一項規定，亦可便利不動產所有權之交易，或進而減少共有人之人數或消滅共有關係，促進共有物之有效利用，實現土地法首揭規定之立法意旨。是以，公同共有不動產應有部分之讓與，自得依土地法第三十四條之一第五項準用第一項之規定。至公同共有人讓與公同共有之應有部分，係消滅該應有部分之公同共有關係（參照民法第八百三十條第一項），與公同共有人將公同共有變更登記為分別共有，係公同共有人間調整共有物內部之法律關係，兩者不同，不容混淆。內政部因執行土地法之規定，基於職權固得發布命令，為必要之釋示，然僅能就執行法律之細節性、技術性次要事項加以規定，其內容更不能牴觸土地法或增加其所無之限制。內政部七十七年八月十八日臺（77）內地字第六二一七六七號函頒修正之土地法第三十四條之一執行要點第十二點規定： 「分別共有土地或建物之應有部分為數人所公同共有，公同共有人就該應有部分為處分、變更或設定負擔，無本法條第一項之適用」，於上開範圍內，就公同共有人公同共有不動產所有權之行使增加土地法上揭規定所無之限制，應不予適用。
J. Y. Interpretation No. 562
Date：2003.7.11
Issue：Where the provision of Paragraph 1 of Article 34-1 of the Land Act that the disposal of or alteration to and the creation of encumbrance on co-owned land or construction may be effected only upon agreement of a majority of co-owners and the consent of those who own an aggregate of one half or more of the shares of such property is made applicable by Paragraph 5 thereof to joint ownership, a Ministry of Interior directive rules that such provision is not applicable to the disposal of or alteration to and the creation of encumbrance on the share of land or construction under ownership in common if such share is jointly owned by two or more persons. Is such rule in conflict with the Land Act and legally valid?
Holding：
The Land Act provides in Article 34-1, Paragraph 1: “The disposal of or alteration to and the creation of rights of superficies, yung-tien, servitude or dien on co-owned land or construction improvement thereon may be effected only upon agreement of a majority of co-owners and the consent of those who own an aggregate of one half or more of the shares of such land or construction improvement; where those who give their consent represent over two-thirds of all shares thereof, no count shall be made of the number of co-owners.” Paragraph 5 of the same article provides that “the prescription set forth in the preceding four paragraphs shall apply mutatis mutandis to joint ownership.” The purpose of the legislation is to promote the effective utilization of common property for the furtherance of public interest while protecting the right and interest of the co-owners. Where the co-owned land or construction improvement referred to in Paragraph 1 of said Article is disposed of by way of transfer of such common property, it is a conveyance of the ownership to such property; and the so-called share of a common property means the portion of the ownership to the common property owned by the co-owner, which is by nature the same as ownership. If the share of a real property is under joint ownership, the assignment thereof is of course subject to the provision of Paragraph 1 of Article 34-1 of the Land Act by mutatis mutandis application pursuant to Paragraph 5 thereof. Clause 12 of the Guidelines for the Implementation of the amended Article 34-1 of the Land Act as promulgated by the Ministry of Interior per Directive Tai (77) Nei-Ti-Tze No. 621767 dated August 18, 1988, provides that “where the share of land or construction under ownership in common is jointly owned by two or more persons, Paragraph 1 of this Article is not applicable to the disposal of or alteration to such share or creation of encumbrance thereon by the joint owners.” To the extent that said clause imposes a restriction that does not exist in the Land Act provision cited above on the exercise by joint owners of their ownership to the jointly owned real property, it must be rendered invalid.
Reasoning：
Co-ownership is a system whereby the ownership of a thing belongs to two or more persons in conjunction and its existence is because of the need of society. As all co-owners have the one and same ownership, however, the exercise of the respective right of each co-owner is subject to correlative restraint (See the Civil Code, Art. 819, Par. 2; Art. 820 and Art. 828). Thus, the activities of using and receiving profits from and disposing of such common property will unavoidably be affected and even the free circulation of common property will be obstructed, thereby resulting in detriment to the social economy. The Land Act provides in Article 34-1, Paragraphs 1 to 5: “The disposal of or alteration to and the creation of rights of superficies, yung-tien, servitude or dien on co-owned land or construction improvement may be effected only upon agreement of a majority of co-owners and the consent of those who own an aggregate of one half or more of the shares of such land or construction improvement; where those who give their consent represent over two-thirds of all shares thereof, no count shall be made of the number of co-owners,” “A co-owner who makes disposal of or alteration or creates encumbrance under the preceding paragraph shall give other co-owners prior written notices or alternatively publish the same if it is impossible to give such notices,” “The co-owners referred to in the first paragraph hereof shall be jointly and severally liable for payment of the consideration or compensation due other co-owners and shall present, when applying for recordation of change of the right, evidence to show that other co-owners have already received such consideration or compensation or the same has been deposited in court. Where a co-owner acquires any right over immovables as a result of such disposal, alteration or creation of encumbrance, he shall apply for relevant recordation for and on behalf of the other co-owners,” “Where a co-owner desires to sell his portion of the share, the other co-owners shall have the preemptive right to buy such portion of the share either individually or jointly at the same price as may be offered by other persons,” “The provisions in the preceding four paragraphs shall apply mutatis mutandis to joint ownership.” The purpose of the legislation is to facilitate transactions in ownership to real property, resolve disputes over co-owned immovables, and promote the effective utilization of common property for the furtherance of public interest while protecting the right and interest of co-owners by precluding the application of Article 819, Paragraph 2 and Article 828, Paragraph 2, of the Civil Code.
It must be noted that the share of a common property means the portion of the ownership owned by a co-owner of the common property, which is by nature the same as ownership. Under Paragraph 1 of Article 34-1 of the Land Act, disposal of co-owned land or construction improvement is subject to the same prescription along with alteration to and creation of rights of superficies, yung-tien, servitude or dien on such land and construction improvement. Thus, so far as transfer of the common property is concerned, the so-called disposal of the co-owned land or construction improvement means the conveyance of the ownership to such property. Likewise, the assignment of other rights over things to the common property means the disposal of such rights over things. If the provision of Paragraph 1 of Article 34-1 of the Land Act cited above is made applicable to assignment of the share of a real property under joint ownership, it will facilitate transactions in ownership to real propertyor, furthermore, either minimize the number of co-owners or eliminate the relationship of co-ownership to promote the effective utilization of common property and to bring about the legislative purpose of the Land Act as explained above. For this reason, Paragraph 1 of Article 34-1 of the Land Act is certainly applicable in pursuance of Paragraph 5 thereof to assignment of the share of a real property under joint ownership. As regards the situation where the relationship of joint ownership to the shares of a jointly owned real property is nullified in consequence of transfer of such shares by the joint owners (See the Civil Code, Art. 830, Par. 1), it is distinguishable from the situation where joint owners cause the recordation of the joint ownership changed to ownership in common in that the joint owners in the latter case aim at adjusting the internal legal relationship of the common property. While the Ministry of Interior, for the purpose of implementing the Land Act provisions, has the power ex officio to issue decrees to give necessary interpretations and instructions, such decrees may only deal with details and technical matters in relation to the enforcement of the law and may neither contradict the Land Act nor add restrictions that do not exist in the Act. Clause 12 of the Guidelines for the Implementation of the Amended Article 34-1 of the Land Act as promulgated by the Ministry of Interior per Directive Tai (77) Nei-Ti-Tze No. 621767 dated August 18, 1988, provides that “where the share of land or construction under ownership in common is jointly owned by two or more persons, paragraph 1 of this article is not applicable to the disposal of or alteration to such share or creation of encumbrance thereon by the joint owners.” To the extent that said clause imposes a restriction that does not exist in the Land Act provision cited above on the exercise by joint owners of their ownership to the jointly owned real property, it must be rendered invalid.
' Translated by Raymond T. Chu.
解釋字號：釋字第562號
解釋日期：民國92年7月11日
解釋爭點：內政部就公同共有不動產應有部分讓與之命令違憲？
資料來源：
司法院公報 第 45 卷 8 期 37-44 頁
司法周刊 第 1142 期 1 版
司法院大法官解釋（十六）（99年5月版）第 135-146 頁
考選周刊 第 924 期 2 版
法令月刊 第 54 卷 8 期 93-94 頁
總統府公報 第 6540 號 27-42 頁
法務部公報 第 312 期 35-42 頁
相關法條：
民法 第 819、820、828、830 條 ( 91.06.26 )
土地法 第 34-1 條 ( 90.10.31 )
土地法第三十四條之一執行要點 第 12 條 ( 91.10.30 )
解釋文：
土地法第三十四條之一第一項規定：「共有土地或建築改良物，其處分、變更及設定地上權、永佃權、地役權或典權，應以共有人過半數及其應有部分合計過半數之同意行之。但其應有部分合計逾三分之二者，其人數不予計算。」同條第五項規定：「前四項規定，於公同共有準用之。」其立法意旨在於兼顧共有人權益之範圍內，促進共有物之有效利用，以增進公共利益。同條第一項所稱共有土地或建築改良物之處分，如為讓與該共有物，即係讓與所有權；而共有物之應有部分，係指共有人對共有物所有權之比例，性質上與所有權並無不同。是不 動產之應有部分如屬公同共有者，其讓與自得依土地法第三十四條之一第五項準用第一項之規定。內政部七十七年八月十八日臺（镲）內地字第六二一七六七號函頒 修正之土地法第三十四條之一執行要點第十二點規定：「分別共有土地或建物之應有部分為數人所公同共有，公同共有人就該應有部分為處分、變更或設定負擔，無 本法條第一項之適用」，於上開範圍內，就公同共有人公同共有不動產所有權之行使增加土地法上揭規定所無之限制，應不予適用。
理由書：
共有乃一物之所有權由二人以上共同享有之制度，係基於社會生活需要而存在，然各共有人因均享有同一之所有權，其權利之行使遂受相互之限制（民法第八百十九條第二項、第八百二十條、第八百二十八條參照），自不免影響共有物用益及處分之順利進行，甚而有礙共有物之自由流通，致生社會經濟上之不利益。土地法第三十四條之一第一項至第五項規定：「共有土地或建築改良物，其處分、變更及設定地上權、永佃權、地役權或典權，應以共有人過半數及其應有部分合計過半數之同意行之。但其應有部分合計逾三分之二者，其人數不予計算。」「共有人依前項規定為處分、變更或設定負擔時，應事先以書面通知他共有人；其不能以書面通知者， 應公告之。」「第一項共有人，對於他共有人應得之對價或補償，負連帶清償責任。於為權利變更登記時，並應提出他共有人已為受領或為其提存之證明。其因而取得不動產物權者，應代他共有人申請登記。」「共有人出賣其應有部分時，他共有人得以同一價格共同或單獨優先承購。」「前四項規定，於公同共有準用之。」其立法意旨係在於兼顧共有人之權益範圍內，排除民法第八百十九條第二項、第八百二十八條第二項規定之適用，以便利不動產所有權之交易，解決共有不動產之糾紛，促進共有物之有效利用，增進公共利益。
按應有部分乃共有人對共有物所有權之比例，性質上與所有權本無不同；而土地法第三十四條之一第一項所稱共有土地或建築改良物之處分，係與變更及設定地上權、永佃權、地役權或典權併列，是所謂共有土地或建築改良物之處分，就讓與該共有物言，即係讓與其所有權，共有物其他物權之讓與，亦屬該物權之處分。況公同共有不動產應有部分之讓與，若得準用土地法上揭第一項規定，亦可便利不動產所有權之交易，或進而減少共有人之人數或消滅共有關係，促進共有物之有效利用，實現土地法首揭規定之立法意旨。是以，公同共有不動產應有部分之讓與，自得依土地法第三十四條之一第五項準用第一項之規定。至公同共有人讓與公同共有之應有部分，係消滅該應有部分之公同共有關係（參照民法第八百三十條第一項），與公同共有人將公同共有變更登記為分別共有，係公同共有人間調整共有物內部之法律關係，兩者不同，不容混淆。內政部因執行土地法之規定，基於職權固得發布命令，為必要之釋示，然僅能就執行法律之細節性、技術性次要事項加以規定，其內容更不能牴觸土地法或增加其所無之限制。內政部七十七年八月十八日臺（77）內地字第六二一七六七號函頒修正之土地法第三十四條之一執行要點第十二點規定： 「分別共有土地或建物之應有部分為數人所公同共有，公同共有人就該應有部分為處分、變更或設定負擔，無本法條第一項之適用」，於上開範圍內，就公同共有人公同共有不動產所有權之行使增加土地法上揭規定所無之限制，應不予適用。
J. Y. Interpretation No. 562
Date：2003.7.11
Issue：Where the provision of Paragraph 1 of Article 34-1 of the Land Act that the disposal of or alteration to and the creation of encumbrance on co-owned land or construction may be effected only upon agreement of a majority of co-owners and the consent of those who own an aggregate of one half or more of the shares of such property is made applicable by Paragraph 5 thereof to joint ownership, a Ministry of Interior directive rules that such provision is not applicable to the disposal of or alteration to and the creation of encumbrance on the share of land or construction under ownership in common if such share is jointly owned by two or more persons. Is such rule in conflict with the Land Act and legally valid?
Holding：
The Land Act provides in Article 34-1, Paragraph 1: “The disposal of or alteration to and the creation of rights of superficies, yung-tien, servitude or dien on co-owned land or construction improvement thereon may be effected only upon agreement of a majority of co-owners and the consent of those who own an aggregate of one half or more of the shares of such land or construction improvement; where those who give their consent represent over two-thirds of all shares thereof, no count shall be made of the number of co-owners.” Paragraph 5 of the same article provides that “the prescription set forth in the preceding four paragraphs shall apply mutatis mutandis to joint ownership.” The purpose of the legislation is to promote the effective utilization of common property for the furtherance of public interest while protecting the right and interest of the co-owners. Where the co-owned land or construction improvement referred to in Paragraph 1 of said Article is disposed of by way of transfer of such common property, it is a conveyance of the ownership to such property; and the so-called share of a common property means the portion of the ownership to the common property owned by the co-owner, which is by nature the same as ownership. If the share of a real property is under joint ownership, the assignment thereof is of course subject to the provision of Paragraph 1 of Article 34-1 of the Land Act by mutatis mutandis application pursuant to Paragraph 5 thereof. Clause 12 of the Guidelines for the Implementation of the amended Article 34-1 of the Land Act as promulgated by the Ministry of Interior per Directive Tai (77) Nei-Ti-Tze No. 621767 dated August 18, 1988, provides that “where the share of land or construction under ownership in common is jointly owned by two or more persons, Paragraph 1 of this Article is not applicable to the disposal of or alteration to such share or creation of encumbrance thereon by the joint owners.” To the extent that said clause imposes a restriction that does not exist in the Land Act provision cited above on the exercise by joint owners of their ownership to the jointly owned real property, it must be rendered invalid.
Reasoning：
Co-ownership is a system whereby the ownership of a thing belongs to two or more persons in conjunction and its existence is because of the need of society. As all co-owners have the one and same ownership, however, the exercise of the respective right of each co-owner is subject to correlative restraint (See the Civil Code, Art. 819, Par. 2; Art. 820 and Art. 828). Thus, the activities of using and receiving profits from and disposing of such common property will unavoidably be affected and even the free circulation of common property will be obstructed, thereby resulting in detriment to the social economy. The Land Act provides in Article 34-1, Paragraphs 1 to 5: “The disposal of or alteration to and the creation of rights of superficies, yung-tien, servitude or dien on co-owned land or construction improvement may be effected only upon agreement of a majority of co-owners and the consent of those who own an aggregate of one half or more of the shares of such land or construction improvement; where those who give their consent represent over two-thirds of all shares thereof, no count shall be made of the number of co-owners,” “A co-owner who makes disposal of or alteration or creates encumbrance under the preceding paragraph shall give other co-owners prior written notices or alternatively publish the same if it is impossible to give such notices,” “The co-owners referred to in the first paragraph hereof shall be jointly and severally liable for payment of the consideration or compensation due other co-owners and shall present, when applying for recordation of change of the right, evidence to show that other co-owners have already received such consideration or compensation or the same has been deposited in court. Where a co-owner acquires any right over immovables as a result of such disposal, alteration or creation of encumbrance, he shall apply for relevant recordation for and on behalf of the other co-owners,” “Where a co-owner desires to sell his portion of the share, the other co-owners shall have the preemptive right to buy such portion of the share either individually or jointly at the same price as may be offered by other persons,” “The provisions in the preceding four paragraphs shall apply mutatis mutandis to joint ownership.” The purpose of the legislation is to facilitate transactions in ownership to real property, resolve disputes over co-owned immovables, and promote the effective utilization of common property for the furtherance of public interest while protecting the right and interest of co-owners by precluding the application of Article 819, Paragraph 2 and Article 828, Paragraph 2, of the Civil Code.
It must be noted that the share of a common property means the portion of the ownership owned by a co-owner of the common property, which is by nature the same as ownership. Under Paragraph 1 of Article 34-1 of the Land Act, disposal of co-owned land or construction improvement is subject to the same prescription along with alteration to and creation of rights of superficies, yung-tien, servitude or dien on such land and construction improvement. Thus, so far as transfer of the common property is concerned, the so-called disposal of the co-owned land or construction improvement means the conveyance of the ownership to such property. Likewise, the assignment of other rights over things to the common property means the disposal of such rights over things. If the provision of Paragraph 1 of Article 34-1 of the Land Act cited above is made applicable to assignment of the share of a real property under joint ownership, it will facilitate transactions in ownership to real propertyor, furthermore, either minimize the number of co-owners or eliminate the relationship of co-ownership to promote the effective utilization of common property and to bring about the legislative purpose of the Land Act as explained above. For this reason, Paragraph 1 of Article 34-1 of the Land Act is certainly applicable in pursuance of Paragraph 5 thereof to assignment of the share of a real property under joint ownership. As regards the situation where the relationship of joint ownership to the shares of a jointly owned real property is nullified in consequence of transfer of such shares by the joint owners (See the Civil Code, Art. 830, Par. 1), it is distinguishable from the situation where joint owners cause the recordation of the joint ownership changed to ownership in common in that the joint owners in the latter case aim at adjusting the internal legal relationship of the common property. While the Ministry of Interior, for the purpose of implementing the Land Act provisions, has the power ex officio to issue decrees to give necessary interpretations and instructions, such decrees may only deal with details and technical matters in relation to the enforcement of the law and may neither contradict the Land Act nor add restrictions that do not exist in the Act. Clause 12 of the Guidelines for the Implementation of the Amended Article 34-1 of the Land Act as promulgated by the Ministry of Interior per Directive Tai (77) Nei-Ti-Tze No. 621767 dated August 18, 1988, provides that “where the share of land or construction under ownership in common is jointly owned by two or more persons, paragraph 1 of this article is not applicable to the disposal of or alteration to such share or creation of encumbrance thereon by the joint owners.” To the extent that said clause imposes a restriction that does not exist in the Land Act provision cited above on the exercise by joint owners of their ownership to the jointly owned real property, it must be rendered invalid.
' Translated by Raymond T. Chu.
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