基地、耕地承租人優先購買權的通知：民法與土地法規的扞格

The Notice to a Lessee of a Building Site or a Farm Land Regarding a Right of First Refusal: the Conflict between the Civil Code and Land Laws

制定在前的土地法並未規定基地、耕地出租人出賣土地時，通知先買權人的方式，但增訂在後的民法則規定應以「書面」通知先買權人，究竟土地出租人以書面以外的方式通知先買權人時，其效力為何，在實務上已有重大爭議，該問題殊值探討。本文挑選實務上的代表案例並闡述「法定先買權的效益與成本」為論述的基礎，整理「現行法關於先買權通知方式的規定」、討論「通知內容」、探討「書面通知規定的立法意旨與違反時之效力」、深究「若出賣人未以書面通知先買權人，先買權人得否行使權利」、剖析「通知義務人」、「誠信原則」及「民法與土地法的適用關係」等相關問題。書面通知有保護先買權人及證據保全等功能，先買權人得依前述民法規定請求出賣人以「書面」通知；但出賣人以書面以外的方式將重要買賣條件通知先買權人，先買權人未請求以書面通知，且未於法定期日內表示優先購買，其先買權視為放棄。

There is no provision concerning 'the way to notice the person who has a right of first refusal when the lessor of a building site or a farm land sells the land' in the Land Act enacted formerly, but there are provisions in the Civil Code added later and provide that the seller shall notify the person 'in writing'. What is the validity if the lessor of the land notifies the person who has the right of first refusal in the way other than writing? It has been an important dispute in practice and of great value to anatomize. This study selects a leading case in practice and elaborates 'the efficiency and costs of statutory rights of first refusal' as the foundation of discussion, lists 'the provisions regarding the ways to notify the person who has the right of first refusal', researches 'the legislative purpose of the provisions about notice in writing and what the validity is if someone violates the provision', discusses 'the content of notice', explores 'whether the person who has the right of first refusal can exercise the right if the seller violates the provision', and analyzes 'the obliger of notice', 'the principle of good faith', and 'the applicative relation between the Civil Code and the Land Act'. The written notice has the functions such as protecting the person who has the right of first refusal and preserving the evidence. The person who has the right of first refusal may claim for 'written' notice according to said stipulations of the Civil Code. However, the person who has the right of first refusal is deemed to give up his right, if the seller notices the important terms of the sale to the person who has the right of first refusal without writing, and the person who has the right of first refusal does not claim for 'written' notice, nor exercise the right of first refusal within the statutory period.