| Summary: | 碩士 === 國立高雄大學 === 法律學系碩士班 === 105 === “CO-ownership” is one of the forms of ownership that people hold in Taiwan. Ac-
cording to paragraph 2 of Article 819 of the Civil Code, “The disposition of, the alteration of and the creation of an encumbrance over a thing held in co-ownership shall only be made with the consent of all the co-owners.” Nevertheless,for the sake of better use of land, and in order to avoid failure of effective land use caused by diverse opinions of co-owners co-owning a piece of land,the government formulated “Article 34-1 of Land Act” in order to realize 3 goals, “making the best use of land,” “sharing the land profits” and “evenly dividing land ownership.” However, since formulation of this
article was considered not a rigorous legislation, a great variety of problems have been emerging in an endless stream ever since practical implementation of this article.
“Article 34-1 of Land Act” prescribes forced disposition of co-owned land or constructional improvements. As long as there is “the consent of more than half of the co-owners whose holding of ownership is more than half of the total hare,” or “if the holding of ownership is more than two thirds, the number of consenting co-owners needs not be taken into account,” under one of the above two thresholds could forced disposition of the entire piece of land be carried out. For this part, most of the people in the theory and practice fields think of this article as “the big bullying the small,” and “ the strong bullying the weak.” Actually, the fact is not completely like that. In times of practical operation, the proportion of cases with “the small controlling the big” is apparently greater than those with “the big bullying the small.” One good example commonly heard by us is those “nail house owners” who claim for extremely expensive compensation during forced disposition of houses.
Formulation of laws aims to solve problens for people.While the rights (benefits)of a minority of people need to be protected, the rights (benefits) of a majority of people also relatively need to be protected.How to achieve a balance in between, and at the same time meet the original legislation intention of this article , to facilitate effective land use, is the direction that legislators should put efforts on revising “Article 34-1 of Land Act” in the future.Furthermore, after collation of the administrative interpretations of the queries over implementation of “Article 34-1 of Land Act,” the competent authorities promulgated “Implementation Guidelines for Article 34-1 of Land Act.”
The Guidelines had been revised successively for 16 times, so that they are inevitably falling into a practice of “treating the symptoms, not the cause” again and again. Thus, it is more appropriate to think about whether we should go back to pursue the “principle of legal reservation.”
The discussions in the paper are made from practical viewpoint. It is hoped that the problems commonly appeared during operation can be authentically reflected. We expect that legislators can more comprehensively solve the long existed unreasonable situations, which frequently occur during practical implementation of forced disposition of land.
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