台灣地區共同抵押立法之評釋

台灣地區民法物權編，自立法一甲子後，為因應時代所需，全盤修法，並送“立法院”審議中。此次修法變動幅度頗大，增刪修廢之條文合計達二百四十八條，甚至超越現行條文之二百二十六條。在草案修法過程中，除農用權、最高限額抵押權、區分地上權等制度頗受矚目外，關於“共同抵押”部分亦多所爭議，幾度易稿，從原來僅一條“第八七五條”，增加第八七五條之一至之三等三個條文，惟修法結果究否妥適，尚有討論空間。今適逢大陸地區民法典草案已出爐，其中第二編物權法中有關擔保物權規定之第二十三章亦有抵押權之規定，為使兩岸關於抵押權法制在修訂與立法前有相亙觀摩之機會，僅以本文共襄盛舉。本文擬從比較法之觀點，比較德國、瑞士及日本三國關於共同抵押制度，探討台灣地區共同抵押修正後所採取之立法原則，並從草案條文剖析可能產生的問題，包括數擔保不動產之間擔保數額之問題、數物上保證人之求償權之問題、物上保證人對主債務人之求償權之問題以及就同一債務同時存有共同抵押人以及保人時，應如何因應處理。最後，提出本文的立法建議。

Book 3 governing rights over things of the Civil Code has been in force in Taiwan District for more than sixty (60) years. In Order to cope with the needs of the era this book has been entirely amended and currently is under pre-legislation examination of the Legislative Body. The scope of the proposed amendments to this Book is considerably large that 248 Articles are to be added, deleted, amended or abolished, even exceeding the total number (226) of Articles in force of this Book. Except the proposed incorporation of new systems concerning the right of agricultural use, the maximuma mount mortgage and the separate surface easement, the added system of mortgage on several immovables has been revised again and again due to diversity of opinions and thus resulted in adding three new Articles (Articles 875-1, 875-2 and 875-3). However, there is still room for discussion about the appropriateness of such proposed Articles. It is glad to see that a brand new draft of the Civil Code of the People’s Republic of China has come up, and of which Book 2 governing rights over things also has Articles regulating mortgage in its Chapter 23. Accordingly, this article is written primarily for scholars on both sides to have opportunities discussing and exchanging opinions so as to perfect the mortgage system before formal enactment. This article is intended to adopt the comparative approach by comparing Taiwan’s mortgage on several immovables with that of German, Switzerland and Japan. It is also to explore the legislative principles of the proposed amendments, and to find out the possible issues out of the texts of such added Articles. Such issues will deal with the secured amount in-between mortgaged immovables, the re-imbursement in-between several guarantors, the re-imbursement claimed against the debtor by the guarantors, and how to clarify the legal relationship existing on a same debt or obligation in-between or among guarantors and sureties. Finally, this article will render legal comments or suggestions for the reference of enactment.