A Discussion on the Right of Co-heirs to the Claims in Common

關於因繼承取得公同共有債權的請求，本文建議是：一、抛棄對民法第八二八條第三項：「公同共有物之處分及其他權利之行使，除法律另有規定外，應得公同共有人全體之同意。」中「其他權利之行使」的限縮解釋；二、參考德國民法的規定，增訂民法第一一五二條之一「本於遺產部分之請求，除已依前條之規定，由繼承人中互推一人管理者外，債務人僅得對全體繼承人為給付，且各共同繼承人亦僅得請求給付予全體繼承人。各繼承人得請求債務人為全體繼承人之利益提存給付標的物；標的物不適合提存時，應將標的物交付予法院指定的保管人。 」

現行法下，關於公同共有債權的請求，原則上應該獲得全體共有人的同意。

It is important to consider both theoretically and practically how the rights to an inherited claim in common may be exercised. Do all co-heirs need to exercise their rights in unison? Or can an individual co-heir exercise his rights with respect to his portion of the claim independently? Article 828.3 of the ROC Civil Code states: “Unless otherwise provided by statutes, the disposition of the thing held in common and the exercise of other rights relating to the same shall be made with the consent of all the owners-in-common.” This paper intend to discuss whether the restrictions explanation  of the Article language,“the exercise of other rights relating to the same”, would lead to the suggestion that co-heirs should be allowed to take independent actions with respect to their own portion of the claims in common. 

This paper suggests that we:

1. disregard the restrictions explanation of “the exercise of other rights relating to the same” in ROC Civil Code Article 828.3 and allow article language to cover the exercise of the right of claims in common; 

2. reference German Civil Code,enact article 1152.1:

“If a claim is part of the estate, unless otherwise the heirs have elected  a person among themselves for its management.,the person obliged may perform only to all heirs jointly, and each co-heir may claim only performance to all heirs. Every co-heir may require that the person obliged deposit the thing to be surrendered for all heirs or, if it is not suitable for deposit, delivers it to a custodian to be appointed by the court”.

Under current regulations, the exercise of the right of claims-in common should require the consent of all the owners-in-common.