物上保證人類推適用保證相關規定──從臺灣高等法院106年度上字第892號民事判決談起

臺灣民法之擔保制度可約略分為人的擔保與物的擔保，前者係以保證人之資力或信用作為債務履行之擔保；後者則由物上保證人以其財產擔保債務人之債務，責任範圍以供擔保之財產價值為限。雖有認為物上保證人與民事保證人之性質不同，物上保證人不應無類推適用保證人之相關規定，但從目的而言，均是由擔保人提供自己之財產為主債務人作擔保，並且債權人於主債務人無法獲得清償時，均需由擔保人所供之財產來滿足債權人之債權，二種擔保之間，實具有法律上地位相似性。雖臺灣高等法院106年度上字第892號民事判決，對物上保證人得類推適用民法第742條第1項規定採取代表性的見解，但對於物上保證人類推適用保證相關規定，仍有進一步說明之必要，故本文從二制度之相異之處，討論類推適用之可能性。

The Civil Code provides guarantees for debt can be mainly divided into two categories: “guaranty” and “mortgage”. The former is based on the guarantor’s capital or credit as a guarantee for debt performance; the latter is mainly based on the way that guarantor directly provides the mortgage for the property. Some scholars believe that mortgage and civil guarantor are different in nature. Owing to this, the legal principles and provisions applicable to civil guarantor, in principle, do not automatically apply to mortgage. In spite of this, if viewed from their respective purpose, these two types of guarantors both offer their properties as security for the principal debtor and are obliged to satisfy the debt payment with their properties when the principal debtor fails to perform the debt obligation owed to the creditor. It is difficult to distinguish the differences and similarities between these two types of guaranty systems. Although the Civil Judgment Appeal-892 by Taiwan High Court in 2017 appeared to be representative of legal opinions on Civil Code Article 742 (1) could be applied by analogy to Mortgage, it is still necessary to further clarify and discuss Civil Code Guaranty Article may be applied by analogy to Mortgage. As a result, this article is intended to discuss whether there are common legal applications to these two apparently different but highly correlated guaranty systems and clearly identify their differences and similarities.