合會民事習慣成文法化之檢視

An Examination of the Codification of Custom Concerning the Rotating Savings and Credit Association

合會於臺灣民事習慣裡，原可分為個別型與團體型兩種契約類型。民法將合會之民事習慣成文法化前，最高法院係以個別型合會之法律關係排解合會糾紛；合會習慣於民國八十九年成文法化後，改以團體型合會之法律關係為規範藍本。本文透過臺中地方法院、沙鹿和臺中簡易庭與高等法院臺中分院之裁判書分析發現，現行民法將合會習慣成文法化後，法院所據以形成裁判之規範依據有違反私法自治原則之情形；於死會會腳未給付合會金時，現行民法對會首並未提供與活會會員對等之保障。本文提出相對應之民法修正建議。

According to the custom of Taiwan, rotating savings and credit association (RSCA hereinafter) can be categorized into two types of contract: the single-line module and the multi-line module.  Before the customs of RSCA was codified, most of the court rulings were based on the precedents of the Supreme Court which lately recognized the single-line module as the only way RSCA operated. When the custom of RSCA was codified in May 2000, by contrast, the multi-line module was adopted as the primary framework of civil law amendment. Through the analysis of court cases collected from Taichung District Court and Taichung Branch of High Court, it is found that the autonomy of private law is violated by the existing civil law with reference to RSCA. Moreover, the Civil Code provides less protection for the leader of the association than the members not winning the bid in cases where the members who have won the bid fail to deliver the payments in the following paragraphs. Suggestions for the amendment of Civil Code are provided in this article.