| 英文摘要 |
Pursuant to the third paragraph of Article 828 of Taiwan Civil Code, the dispositionof the thing held in common and the exercise of other rights relating to the same shall bemade with the consent of all the owners-in-common. In litigation, this amounts toNecessary Common Inherence Legal Action. Yet, according to the second paragraph ofArticle 828, the provisions of Article 821 shall apply mutatis mutandis to the ownershipin-common. This recognizes an exception for the principle of the conjoint disposition setout in the third paragraph of Article 828. Since each owner-in-common may exercise theright of ownership against the third party for the whole thing held in common, there is noneed to sue or be sued as co-parties. However, the issue is whether such exception can beapplied mutatis mutandis to the circumstances where creditors rights are held in commondue to succession, or whether the exception is not appropriate for such situationsessentially, which shall rather apply the principle of the conjoint disposition. Regardingthis issue, the 3rd Resolution of 2015 of Supreme Court affirmed that only when claimingfor restoration of the creditors rights in common, the exception could be applied mutatismutandis. The Taiwan Supreme Court is thus of the opinion that all of the heirs mustjointly appear as plaintiffs in such an action. Whether this position is appropriate will beanalyzed herein. This article will address the possibility of claiming on creditor’s right from succession separately, and analyze the factors concerning the necessity of joinder ofparties to determine whether the resolution makes sense.
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