論占有連鎖之要件與效力──最高法院104年度台上字第40號民事判決之啟發

On the Conditions and Effects of the Chain of Possessions: Comments on the Supreme Court Judgment of 2015 Tai-Shan No. 40

由於我國民法對於土地及房屋，均有獨立所有權，從而房屋座落於土地之正當權源，一直是學說及實務重要之課題。占有連鎖為常見之土地占有之正當權源，而其要件中，若所有權人與中間占有人之契約中「明示或默示同意」得自由移轉占有，此固無問題。但若中間占有人「未經所有人同意」下逕為占有移轉，是不是就當然沒有占有連鎖之可能，便值得探討。本文認為，所有權人與中間占有人間之契約，若本質上隱含或契約目的，便在於讓中間占有人得以取得自由移轉之權限，例如實務上常見之合建契約，或買賣契約，縱然所有權人未為同意，仍構成占有之連鎖，此為「一次同意」或「概括同意」類型之契約。反之，若契約本質上並不隱含，或契約目的並未使所有權人終局想放棄其所有權能之實現，例如僅為租賃或使用借貸，就必須在具體「個案」中透過當事人意思自主，才能建構占有連鎖之正當權源，此為「二次同意」或「個別同意」類型之契約。

Taiwan’s Civil Code provides separate ownership rights for land and houses. Therefore, the legitimate source of title to the land on which the house is located has always been an important issue in civil law. The Chain of Possessions/Multi-Class Possession is a common source of ownership. If there is an“express or implied consent”in the contract between the owner of the land and the intermediate possessor, the possession can be freely transferred by the intermediate possessor. However, if the intermediate possessor transfers his possession“without the owner's consent,”it is worth discussing whether a chain of possession can still exist.
This article suggests that if the contract between the owner of the land and the intermediate possessor, either implicitly by its nature or by its purpose, enables the intermediate possessor to have the authority to freely transfer his possession (such as in a joint construction contract or a sales contract), then even without explicit/implicit consent, a chain of possession is still formed. This is referred to as“one-time consent”or“general consent”type contract. On the other hand, if the nature of the contract is not implicit, or the purpose of the contract does not imply that the owner ultimately intends to relinquish all his capabilities, such as in a simple lease or a loan for use, the chain of possession must be based on the independent will of the parties in the specific case. Only in this way can a legitimate source of rights for the chain of possession be constructed, which is referred to as ''secondary consent'' or ''individual consent'' type contract.