對占有物費用支出償還之探討－－以我國民法第954、955及957條規定為中心

Research on the repayment because of the expenditure on the by the possessor occupied object - Focus on the articles 954、955 and 957 Civil law of Taiwan

依民法第九百四十條，對於物有事實上管領之實力者，即對物有事實上支配力之占有人。而欠缺占有權源之占有人，係因其未擁有對抗所有人物上請求權之權利；然而當所有人於行使所有物返還請求權時，對於無權占有人仍應負費用支出償還之義務。並且依照占有人對占有物之狀態，而區分其應負義務與責任之不同範圍。就自主、他主之區分，係依占有人是否自認以所有人之意思而為占有為標準；善意、惡意，則是以占有人自信（包括誤信）是否有權利占有而區別之。在占有物費用支出之償還方面，即以占有人為善意或惡意作為區分法律效果之界線。本文即以所有人行使返還請求權時，無權占有人得請求其於占有物上費用支出償還之規定，與我國無因管理及不當得利制度相比較，探討我國在這三種法律體系對於占有人權益保護上之異同，並以德國法院實務及學說見解做為借鏡，比較兩國法律在無權占有人費用支出之內容類型化差異，在維持財產平衡性之規範目的下，能否達成民法規範中，維持私人財產無不當變動之目的。

According to the article 940 civil law of Taiwan： the person who has the domination on the object in fact is namely the possessor. While the owner reclaim the possession of the by possessor occupied object on the basis of his ownership, the possessor without right of this object can ask the repayment because of the expenditure. The owner should take the different duties of the repayment for the possessor regarding his possessing with or without the right of this by him possessed object. Whether the possessor is the person, who possesses the object, for himself or other person, in the light of he in good faith about the right of the possession according to the ownership. In other words, he recognizes himself as the owner of this by him possessed object and is regarded as the possessor for himself. The distinction between the possessor in good faith and in bad faith depend on the possessor's recognition(including believing mistakenly) about his right of the by him possessed object and the range of the repayment of the possessor because of the expenditure on the possessed object count on that the possessor is in good faith or in bad faith about his right of the possessed object. Therefore, the regulations about the repayment of the by the possessor expended at possessed object expenditure in this article are researched, and compared with negotiorum gestio, unjust enrichment system of civil law of Taiwan. The possessor's rights and interests in these three kinds of legal systems in civil law also are discussed in this article detailedly. Regarding the opinions from the practice of German court, the viewpoints of their relative theory und comparing of the application of the repayment of the possessor without right in Taiwan with that in German can be found the differences of the classification of the expenditure. Finally, the equitable purpose of the correctness of exchange between the individual properties can be maintained.