論同時履行抗辯權之行使及其效果

On the Exercise and Effect of the Right of Simultaneous Performing

同時履行抗辯權為雙務契約在債務履行上特有之效力，實用上甚為普遍及重要。同時履行抗辯權成立後，當事人行使該抗辯權之方法及其效果為何，尚有不少疑義。本文乃就同時履行抗辯權於訴訟外或訴訟上行使之方法為比較，並對法院於被告以同時履行抗辯為防禦方法所作之裁判為論述。又，當事人有給付遲延或受領遲延情事時，是否影響其同時履行抗辯權之行使，殊有討論之必要，本文詳為分析。此外，原告訴請被告給付為有理由，而被告同時履行抗辯權亦為有據時，於法院亦命原告對被告為對待給付之判決，其是否為全部勝訴判決？其於強制執行之聲請，如何開始執行？如原告之請求與被告之對待給付成立訴訟上和解，於強制執行時，與經判決者有無不同？本文就上開各問題本於實體法及程序法為統整之檢討，由此觀察行使同時履行抗辯權之實益，並瞭解交換履行判決，經強制執行程序之結果，反而被告即債務人之對待給付，先受清償之情形，並非民法同時履行之原意，此一情形，殊值省思。

It is an important and common practice in support of the unique effect for the right of simultaneous performing when performing obligation in accordance with bilateral contract. However, after sufficing the establishment of the right of simultaneous performing, there exists a number of uncertainties concerning the means to exercise the right of simultaneous performing and its effect. This article compares the means of exercising the right of simultaneous performing between when it goes beyond civil procedure and pursuant to civil procedure; moreover, elucidates the court ruling when the defendant exercises the right of simultaneous performing as the means of defense. In addition, when it comes to the situation that the parties delay in presentation or delay in reception, would it undermine the exercising of the right of simultaneous performing? This article strives to offer an analysis in greater depth attributable to the necessity of further discussion. Besides, issues such as that should it be a whole winning judgment when the courts rule a judgment of exchange performing that the plaintiff 's allegation has grounds as well as the defendant's argument on the right of simultaneous performing is reasonable? How could the proclamation of legal execution be enforced? Would there be an explicit distinction when it comes to the settlement under the civil procedure? By reviewing the fundamental substantive law and procedural law all at once, this article undertakes the issues raised above into discussion to articulate the incongruity that the consequences of exercising the right of simultaneous performing might contradict the original legal purpose provided by the civil code for the right of simultaneous performing, which would be thought-provoking.