共同最高限額抵押權之重大議題析論

Analysis of Major Issues in Joint Line of Credit Mortgages

關於共同抵押權之立法，民法物權編於2007年修正前係單採共同抵押權人「自由選擇權保障主義」，惟於2007年修正後，因兼採「調整主義」，故增列民法第875條之1至4等4個條文，另亦增列民法第881條之1至17等有關最高限額抵押權之相關規範。但關於集「共同抵押權」及「最高限額抵押權」雙重特性於一身之共同最高限額抵押權，則僅設有民法第881條之10之確定規範及民法第881條之17之準用規範，規範密度明顯不足，致施行以來迭生爭議。共同最高限額抵押權新制自施行以來所生之重大爭議，包括：是否再進一步區分為「純粹式」與「非純粹式」？兩者區別標準為何？所稱擔保債權同一性之認定標準為何？尤其，在承認非純粹式共同最高限額抵押權得予準用普通共同抵押權之調整規範時，各抵押物分擔額應如何計算？本文均有詳盡之解析。

With regard to legislation the joint mortgages, before the amendment of the Rights in Rem Chapter of the Civil Code in 2007, only the doctrine of ''freedom of choice protection'' for joint mortgagees was adopted. However, following the 2007 amendment, due to the adoption of an ''adjustment doctrine'', four articles, including Articles 875-1 to 875-4 of the Civil Code, along with additional regulations related to the line of credit mortgages in Articles 881-1 to 881-17 were added. Concerning the joint line of credit mortgages, which combines the dual characteristics of ''joint mortgages'' and ''line of credit mortgages'', there are only definite regulations in Article 881-10 and applicable regulations in Article 881-17 of the Civil Code. This indicates that the density of regulations is evidently insufficient, resulting in disputes since its implementation. Several significant controversies arising from the implementation of the aforementioned new system of joint line of credit mortgages, including: whether further differentiation into ''pure type'' and ''non-pure type'' is warranted and what the criteria are for the distinction. Additionally, what are the standards for determining the identity of the secured claims? In particular, when we recognize that the provisions regarding regular joint mortgages can apply mutatis mutandis to ''non-pure type'' joint line of credit mortgages, how should the amount apportionable from each property be calculated? This article provides comprehensive in-depth analyses on those issues.