| 英文摘要 |
The purpose of this article, which is divided into four parts, is to analyze legal relationship between Mortgage and Superficies in Taiwan. Following an introduction concerning the principle of Priority, Part II explores the case where Mortgage precedes Superficies. In this occasion, when a mortgagees enforcement of a Mortgage is affected by existence of Superficies or of Lease later established, a court may remove such rights or terminate such Lease relationships and thereafter auction the property. Furthermore, if, after the creation of a Mortgage, the landowner constructs buildings on the mortgaged land, the mortgagee may when necessary apply to a court in the course of compulsory execution procedures to have the buildings sold by auction together with the land, but shall have no preferential right to satisfaction from the proceeds from the sale of such buildings.
Part III researches the case where Superficies precedes Mortgage. After the creation of Superficies or of Lease relationships, the owner of a real property may, on the same real property, create a Mortgage, but the Superficies or Lease will not be affected thereby. However, as for a Loan relationship, it can’t be opposable to Rights In Rem. This is why a Loan relationship previously established will be affected by mortgage later created on the same real property. Finally, Part IV concludes by offering a panorama of relationship between Superficies and Mortgage in Taiwan.
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