臺灣的非典型擔保物權

Taiwanese Atypical Security Right In Rem - Focus on Ownership Assigned as a Guarantee

本文以臺灣非典型擔保物權為題，說明我國讓與擔保制度在實務上之遞嬗變遷。首先，本文敘述立法者於二○○七年民法修正之際，將當時行之有年的最高限額抵押權、最高限額質權、以及營業質權加以明文化的發展動向。其次，本文耙梳我國最高法院判例與裁判承認之讓與擔保，闡釋其概念暨肯認其適法性，並依序分析讓與擔保在當事人間之內部關係，以及當事人與第三人之外部關係。最後，引介法國民法增訂讓與擔保之法制成果，倡議我國應儘早考慮讓與擔保之典型化。

The purpose of this article, which is divided into three parts, is to analyze the recent development of Taiwanese atypical security right in rem. Following an introduction relative to Line of credit mortgages, to Line of credit pledge, and to Business pledge of personal property, Part II explores the evolution of ownership assigned as a guarantee in Taiwan. Three subjects are successively presented here : the definition of ownership assigned as a guarantee in the jurisprudence, the inner relationship between grantor and security creditor, and the outer relationship between grantor/creditor and a third party. Finally, in the inspiration of French civil law, Part III concludes by proposing a codification of ownership assigned as guarantee in Taiwan.