土地法第34條之1第2項的通知或公告義務──以多數共有人出賣前的通知義務為主

Duty of Notification or Announcement according to ParagraphⅡof Article 34-1 of the Land Act: Focus on Duty of Notification before Majority Co-owners’Sale

土地法第34條之1第2項的通知義務，對多數共有人與他共有人影響甚大。就該通知義務的功能與時點，既有的見解不一；該通知是否為優先購買權的通知，也不明確。本文著重於相關當事人的利益衡量及結果導向的思維方式。
以多數共有人的通知義務作為保護他共有人之機制的緣由，在於不使他共有人喪失原有受通知而知悉的機會，並基於風險高而有利益衝突之虞的考量。多數共有人應於出賣共有不動產之前合理期間，依土地法第34條之1第2項規定通知。該通知的功能在於使他共有人就對價等事項有表示意見的機會或預為其他安排。為發揮通知的功能，該通知的內容，應至少包含多數共有人願意承諾的買賣標的物、價金與多數共有人的姓名。該條第2項並非優先購買權通知的規定。

Duty of notification according to ParagraphⅡof Article 34-1 of the Land Act impacts majority co-owners and other co-owners a lot. Existing viewpoints on the function and timing of this duty of notification vary; whether this notification is the notification of a right of first refusal is also unclear. The interests of the concerned parties and the result-oriented mode of thinking are emphasized.
The reason for taking the duty of notification by majority co-owners as a mechanism to protect other co-owners lies in ensuring that other co-owners do not lose the original opportunity to be informed by notification and in considering high risks and potential conflict of interests. Majority co-owners shall, within a reasonable period before selling co-owned real estate, comply with the notification requirement as stipulated in ParagraphⅡof Article 34-1 of the Land Act. The function of the duty is to provide other co-owners with the opportunity to express their opinions on matters such as the sale price or make other arrangements in advance. To make the duty functional, the content of the notification should at least include the object and price, that majority co-owners are willing to accept, as well as the names of majority co-owners. ParagraphⅡof the said Article is not the provision about the right of first refusal notification.