花非花霧非霧──婚前財產之婚後消失

The Bloom Is Not a Bloom, the Mist is Not Mist: When Premarital Assets Have Disappeared During the Marriage

為了正確計算民法第1030條之1第1項剩餘財產之差額平均分配，婚前財產於婚後是否消失、如何消失，在剩餘財產之分配請求時如何處理？成為司法實務近來關切之議題。本文區分婚前財產之標的，例如不動產、存款、股票進行探究。筆者認為實務上應該拋棄變形替代說，且貫徹形式說而正確適用1030條之2等處理性質轉變之規定。蓋婚前財產之婚後消失，看似僅屬證據取捨或舉證責任，其實基本上是1030條之2的適用乃至於類推適用範圍的問題。

For correctly calculating the amount of division of marital property from paragraph 1 of article 1030-1 of the Civil Code, there is an issue about when and how did premarital assets disappear during the marriage, how to handle this in the claim of division of marital property, becoming of recent concern in legal practice. This paper resolves this issue by distinguishing the target of premarital assets such as real estate, bank deposit, shares of stock. In my opinion, we should abandon the theory of transfiguration or substitution, and contrarily insist the formal standpoint about applying article 1030-2 correctly to regulate transformation. For the issue about premarital assets disappeared during the marriage, is not just about a burden of producing evidence or a question of evidence selection, but also about the solution of analogical application of article 1030-2.