以合併分割實體與程序交錯之方法論評最高法院109年度台抗字第1252號民事裁定

A Review on Supreme Court Civil Judgment 109, Tai Kang Zi, No. 1252 (2020) Through the Methodology Intertwined with Substantive and Procedural Law in Claims to Merge and Then Partition

民法第824條第6項允許僅有部分共有人相同之情形下亦可合併分割，但在訴訟上將衍生複數不動產與不同共有人間的複雜關係，過去鮮有詳論，卻具實務重要性。最高法院109年度台抗字第1252號民事裁定針對二審反訴容許性之爭議，罕見地以類推適用民事訴訟法第446條第2項第2款之法學方法，允許被告於本訴二審中納入新土地以合併分割，延伸出合併分割訴訟如何認定被告適格之前提問題。本文以法學方法論為根基，主張將實體法觀點與程序法理論交錯觀察，以貫徹法秩序一致性之考量。從而，合併分割訴訟即是以「合併分割請求權」作為訴訟標的，並應以全部所涉土地之共有人為被告方為適法。惟針對系爭二審反訴容許性，雖然現行二審反訴制度的確存在法律漏洞有待填補，但並非如本件裁定個別類推民事訴訟法第446條第2項第2款，而應總體類推該項但書規定。

Article 824, Paragraph 6 of the Civil Code permits the claim to merge and then partition of jointly-owned property even when only part of the co-owners are the same. In litigation, however, this results in complex relationships involving multiple real properties and different co-owners, a topic that has seldom been thoroughly discussed, but holds significant practical importance. The commented decision of Supreme Court of Taiwan addresses the permissibility of counterclaims in the second instance, notably applying by analogy Article 446, Paragraph 2, Subparagraph 2 of the Code of Civil Procedure. This allowed the defendant to include new parcels of land for the claim to merge and then partition in the second instance of the primary lawsuit. This ruling further raises the fundamental issue of how to determine the proper standing of defendants in such lawsuits. This article, grounded in the legal methodology, argues for an intertwined observation of substantive law perspectives and procedural legal principles to ensure the consistency of the legal order. Consequently, in the claim to merge and then partition, the right to claim to merge and then partition should be considered the subject matter of the litigation, and all co-owners of the involved parcels of land should be proper defendants. Regarding the permissibility of counterclaims in the second instance, while there are indeed legal loopholes in the current system that need addressing, the ruling's analogy to Article 446, Paragraph 2, Subparagraph 2 of the Code of Civil Procedure is not appropriate. Instead, the proviso of that paragraph should be analogously applied in its entirety.