析論靠行營業車輛所有權及駕駛人侵權行為責任－－由強制執行面向探討

An Analysis of the Responsibility of Ownership of Fleet Vehicle - Analysis from the Perspective of Enforcement Execution

「靠行」指駕駛人未領得營業執照前向已領取營業執照之貸與名義人，借用營業名義經營計程車或貨運業務，而將營業名義貸與他人使用。在信託法未通過施行前，實務上大致認依信託關係而屬貸與名義人所有，惟在信託法通過後，因貸與名義人與借用名義人間法律關係型態複雜，可區分購車出資方式及何人出賣車輛、靠行車輛參與之營運管理組織（即貸與名義人控制力之強弱）及靠行車輛對外責任等諸多要素而有不同之組合，非一概合於信託法規定之態樣，故如靠行車輛均係由借用名義人管理使用及占有，且未曾交付予貸與名義人占有使用及移轉所有權，原則上仍應以借用名義人為所有權人，惟若第三人因靠行車輛登記於貸與名義人名下之外觀而與靠行業者從事交易，本文認為第三人因善意信賴該登記外觀而與貸與名義人從事交易，貸與名義人之處分靠行車輛行為應係無權處分，則應適用民法第801條及第948條規定，善意取得靠行車輛所有權。倘若需要透過繁複調查或動輒依賴當事人另行提起訴訟確認，恐影響強制執行程序之進行，爰就對動產強制執行原則、靠行車輛所有權歸屬、對靠行車輛之查封、換價及當事人就執行法院執行之救濟分別說明。
再倘當時本件假扣押債權人係將貸與名義人一併列為連帶損害賠償之債務人，得一併查封借用名義人及貸與名義人二人所有之車輛，可較為迅速完成強制執行查封，惟貸與名義人與借用名義人就所生交通事故之損害是否一概應連帶負損害賠償責任，可區分諸多類型，爰一併予以說明。
末則國家禁止個人從事交通運輸業之經營是否合理，非本文論範圍，惟所衍生之靠行制度已增加貸與名義人、借用名義人及第三人間法律關係之複雜化，爰一併提出修法建議以代結論。

Fleet vehicles ' refers to the driver has not received a business license to obtain a business license before the loan and the name of the person to borrow the business name of the taxi or freight business, and the business name of the loan to others. Before the adoption of the Trust Law, it is generally believed to belong to the nominee under the trust relationship. However, after the adoption of the Trust Law, the legal relationship between the loan and the nominee can be distinguished from the borrower.Whoever sells the vehicles, has different combinations of the operation and management organizations involved in the operation of the vehicles and the external liabilities of the vehicles concerned, and so on, If the vehicle is used by the borrowing of the nominal management and possession, and has not been delivered to the nominal possession of the use and transfer of ownership, in principle, should still borrow the name of the owner, but if the third line The vehicle is registered in the appearance of the loan and the name of the person and engaged in the transaction with the trader. The third party believes that the third party is willing to trust the registered appearance to engage in the transaction with the nominee, it should be applied to civil law Article 801 and Article 948, to obtain the right to rely on vehicle ownership. If the need for complicated investigation or rely on the parties to separate proceedings to confirm, fear of affecting the enforcement process, the principle of enforcement of movable property, ownership of vehicles by ownership, the right to rely on the vehicle closure, the price and the parties on the implementation of the court The remedies for enforcement are stated separately.
And if at that time the forfeit creditor is a debtor who is to be credited as a joint and several liability for damages jointly and severally, it may seize the vehicle borrowed by the nominal person and mortgaged by the nominal person and may be compelled to effect the seizure more promptly, And the nominal and the borrowing of nominal damage on the traffic accident should be associated with all the negative damage liability, can distinguish between many types, together to be explained.
At the end of the article, whether the state prohibits individuals from engaging in the operation of the transportation industry is reasonable, but the scope of this article does not depend on the fact that the derivative system has increased the credit and nominal rights, borrowed the legal relationship between the nominee and the third person. Proposal to the generation of conclusions.