論不動產利用權與抵押權之關係

A Legal Study of Relationship between Superficies and Mortgage Created on the Same Real Property in Taiwan Law

本文闡述我國不動產抵押權與利用權之關係，原則上兩者之優先次序依時間成立先後定之。首先，在抵押權成立在先的場合，前者可透過聲請法院除去後者、以及將嗣後營造之建築物與土地併付拍賣的方法，確保其換價權能。反之，在不動產利用權成立在先的情形，具有物權效力之利用權存續，並不受到抵押權影響，但僅具債權效力之使用借貸關係則不得對抗抵押權。惟最高法院有針對身分密切者相互間、以及建商與地主間的借地建屋兩種特殊個案，賦予物權化之效果，具有本土法學之特色。

The purpose of this article, which is divided into four parts, is to analyze legal relationship between Mortgage and Superficies in Taiwan. Following an introduction concerning the principle of Priority, Part II explores the case where Mortgage precedes Superficies. In this occasion, when a mortgagees enforcement of a Mortgage is affected by existence of Superficies or of Lease later established, a court may remove such rights or terminate such Lease relationships and thereafter auction the property. Furthermore, if, after the creation of a Mortgage, the landowner constructs buildings on the mortgaged land, the mortgagee may when necessary apply to a court in the course of compulsory execution procedures to have the buildings sold by auction together with the land, but shall have no preferential right to satisfaction from the proceeds from the sale of such buildings.
Part III researches the case where Superficies precedes Mortgage. After the creation of Superficies or of Lease relationships, the owner of a real property may, on the same real property, create a Mortgage, but the Superficies or Lease will not be affected thereby. However, as for a Loan relationship, it can’t be opposable to Rights In Rem. This is why a Loan relationship previously established will be affected by mortgage later created on the same real property. Finally, Part IV concludes by offering a panorama of relationship between Superficies and Mortgage in Taiwan.