代位分割遺產訴訟之程序衝突──關於審判權限與程序主體之分析

The Conflicts between the Subrogation and Inheritance Litigation: A Focus on the Jurisdiction and Procedural Subject

家事事件法於二○一二年修法，於審判組織上設立專業之家事法院（庭），與受理財產紛爭之民事庭相區隔，藉家事審判權貫徹家事事件由專業法庭審理之精神。家事事件法卻仍不免與民事訴訟法發生適用上之衝突，在代位分割遺產訴訟，雖涉及分割遺產之家事紛爭，但實務上卻仍劃由民事庭審理，而不由家事專業法庭審理；針對被代位債務人（繼承人之一）之當事人適格，實務見解則相當分歧。本文基於程序法之觀點，自當事人之程序保障及法院有效終結紛爭之功能面向，回顧實務見解，針對代位分割遺產訴訟由何法院（庭）審理（定性、審判權、事務分配）、應在何人間（當事人適格）進行訴訟等問題，提出意見。

After the amendment of Family Act in 2012, matters provided in this act shall be governed by the family court or family tribunal in order to ensure proper, expeditious and integrated handling of family matters under selected judges. Article 242 of Civil Code prescribes that subrogation occurs once the debtor delays to claim his interests while being in default. Therefore a creditor is subrogated to the debtor’s right to commence the inheritance litigation as long as the debtor neglects to assert his legal portion. Since the court applies different standing principles between subrogation and inheritance litigations, it is confused if the debtor should be a party in these lawsuits. Further, for the reason that this subrogation claim may take account of issues involving both civil and family matters, whether these lawsuits ought to be governed by the family court (tribunal) under the new Family Act is uncertain. Based on the due process and the functions of the procedural law, this article analyzes recent different judicial opinions and suggests a solution to the conflicts between subrogation and inheritance litigations.