| 摘要: | 本論文以共有土地分割登記實務為主軸，研究共有土地分割之相關問題。共有土地於民法之規範下，需經共有人全體之同意方得管理或處分，致不利於共有土地之利用或融通，民國98年1月23日修正後之物權法關於共有不動產之處分、管理與分割方法等所制定之新規定，企圖尋求共有不動產處分、管理與分割方法，此舉已向前邁進一步。然實務上，共有人間因利益衝突所產生意見紛歧，仍存在許多問題尚待解決。
本論文以民法所規範之共有制度論述起，就共有土地之分割內涵，包含分割請求權之意義及其性質、有無消滅時效之適用、分割原則、方法、效力分析其基礎理論及理由。其次，就法令設有限制分割之規定上，對使用目的、契約訂有不可分割之限制及其他法律規定之限制，分析探討其爭點。再者，共有土地分割之本質，究竟是私有財產之處分行為，抑或公法公益之限制行為，亦值研究。最後，為落實共有土地分割目的，除於登記實務上相關法令規定之步驟、流程及應備文件上闢專章探討外，並舉實例說明，藉此強化實務運作模式。期能藉謀求一公平、妥適之共有土地分割程序上達成共有土地分割立法目的。如此，方能兼顧共有人權益之保護，對減少未來共有土地分割之爭議問題上亦可收事半功倍之效。
This study discusses the co-owned land division's related issues based on the co-owned land dividing registration practices. According to the Civil Code, the consent of all the Co-owners shall be required for the management or disposition of the land, which is adverse to the use or circulation of co-owned land. The new regulations of disposition, management and dividing methods regarding co-owned real estate that has been stipulated in the amended property law drafted on January 23, 2009, which furthermore attempts to seek out ways of dealing with the disposition, management and division of co-owned real estate. This is already an action that is moving forward. However, there are still disputes among co-owners arising from the conflict of interest in practice while there are still many problems that need to be resolved.
From the co-ownership system stipulated in the Civil Code, this study initiates the analysis of fundamental theories and reasons of land division, including the meaning and nature of claims regarding the division of co-owned land, the application of extinctive prescription, dividing principles, the methodology and the effects. Next, it analyzes the disputes arising from the disagreements on land dividing limitations and other legal restrictions in terms of dividing land under current legal regulations. Furthermore, it is worthy to study the nature of co-owned land divisions, the disposition of private properties and the restrictions for public welfare under these laws.
Finally, the study analyzes the purpose of co-owned land division, in addition to engaging in discussions dedicated to the regulations that govern these procedures, the processes as well as the required documents needed for registration purposes. There are also explanations via cases as to why to reinforce the practical operation model. It is expected that they will come up with land dividing legislation that enforces a fair and proper co-owned land division procedure. Accordingly, it also considers the protection given to co-owners in terms of potential disputes over the division of co-owned land if and when they arise in the future. |
