• 作者： 蘇永欽
• 作者服務機構： 政治大學法律系
• 中文摘要： Shared property is as old as legalization of property right. The Civil Code recognizes several forms of shared property. Economic analysis might answer the question, which form the most efficient is. It has also been a bone of contention as to whether the agreement on share of use and cost among shareholders should be binding to the buyer of share, when the agreement is unknown to him. The author believes that transaction cost must be higher, if the law would not protect the innocent buyer, as the Majority of Grand Justices think it should. The Draft of Amendment to the law of things would add another paragraph to deal with the situation that shareholders are not able to come to an agreement. According to the new rule, the court should then make a decision at request on the method of share of use and cost for them. Whether this is a reasonable solution is very doubtful. The author believes the judges should never try to play the role of King Solomon and should keep silent here. Let shareholders decide on their own, whether to split or to go on like this. At last, since separate property is always more efficient than shared property, it is reasonable to oblige the court to make a split decision for the shareholders, if they could not come to an agreement on splitting. The author suggests that the most efficient way of splitting is to sell the property at auction and to split the purchase money. But shareholders should have the right to first buy under the same conditions.
• 英文摘要： 自有財產權以來即存在共有。民法定有數種共有形式，經濟分析有助於了解何種形式的共有最有效率。實務與理論對於共有物的分管約定是否可拘束應有部分的善意買受人，向有爭議。本文贊同大法官優先保護善意買受人的解釋，認為此時交易成本應較低。又此次民法物權編修正草案增訂有關分管協議無法達成時得聲請法院裁判的規定，本文認為並不妥當。較符合效率的解決方式，還是由共有人自行決定，無法達成協議就分割。至於如何分割共有物的問題，因為分別所有恆較共有更有效率，所以由法院依聲請而裁判分割，並無不當。但法院分割的最好方法，應該是公開拍賣，由願意付出最多者取得，其價金再由共有人分配。但若共有人中有願意以同一條件購買者，應使其有先買權，藉此降低調整使用方式的成本。
• 中文關鍵字： shared property; agreement on share of use and cost; split of shared property; transaction cost
• 英文關鍵字： 共有；分管契約；分割；交易成本