論買賣共有墓園用地之個人應有部分適用土地法第三十四條之一疑義

Questions regarding the application of Article 34-1 of the Land Act to the sale of an individual's share of jointly owned cemetery land.

土地法三十四條之一規定共有土地的處分、變更及設定負擔的相關規範，殯葬業者將其所有之殯葬用地規劃爲成千上萬個個人墓園用地出售，購買人間形成共有關係，日後再行出售其持份時，根據土地法三十四條之一之相關規定:共有土地之處分應以共有人過半數及其應有部分合計過半數之同意行之，且共有人為處分時，應事先以書面通知他共有人；其不能以書面通知者，應公告之。共有人出賣其應有部分時，他共有人得以同一價格共同或單獨優先承購。若按此規定，出賣人勢必要以書面通知成千上萬個共有人，通知成本極高，對於出賣人造成困擾。本文試從民法、土地法第三十四條之一的相關規範及相關實務見解進行分析，並呼籲內政部應儘速針對此情形做出通案解釋，以徹底解決該爭議。

Article 34-1 of the Land Act stipulates the relevant regulations for the disposal, alteration, and imposition of encumbrances on jointly owned land. When a funeral service provider plans to sell thousands of individual cemetery plots on its land, creating a joint ownership relationship among the buyers, and later sells their share, Article 34-1 of the Land Act stipulates that the disposal of jointly owned land requires the consent of more than half of the co-owners and more than half of their respective shares. Furthermore, a co-owner must notify the other co-owners in writing beforehand; if they cannot provide written notification, they must issue a public notice. When a co-owner sells their share, the other co-owners have the right of first refusal, either jointly or individually, at the same price. However, this provision would require the seller to provide written notification to thousands of co-owners, incurring extremely high costs and causing significant inconvenience. This article attempts to analyze this issue from the perspectives of the Civil Code, Article 34-1 of the Land Act, and relevant practical insights, and urges the Ministry of the Interior to issue a general interpretation as soon as possible to thoroughly resolve this dispute.