The Feasibility and Necessity of Incorporating Non-accessory Security Rights In Taiwan’s Mortgage Legal System

• Main Authors: Lin Hsiu-Ping, 林秀泙
• Other Authors: TZENG, CHIEN-JIUAN
• Format: Others
• Language: zh-TW
• Published: 2019
• Online Access: http://ndltd.ncl.edu.tw/handle/5u57q7

碩士 === 國立高雄大學 === 法律學系碩士班 === 107 === The establishment for the security rights system of the real property starts from the first draft of the civil law in the late Qing Dynasty. Similar to the German civil Law, in the chapter of the rights in rem in this draft, the non-accessory land charge, the mortgage, the pledge of the real property and the pledge of personal property were regulated. After that, the regulations of the non-accessory land charge and the pledge of the real property were removed in the second draft of the civil law because it was considered that they were not used to apply and, meanwhile, necessary to be used according to the economic situation. However, the implementation of civil law rights in rem has been more 80 years. Under the needs of the social and economic situation and the impact of European law trend, there are a considerable difference for the concept of the security rights of the real property to meet the needs of modern society, including current social structure, economic pattern or people's life concept. The amendment of the real rights was passed its three readings in the Legislative Yuan in 2007, and the line of credit mortgage used commonly in the past was legalized. However, based on the numerus clausus Principle, the security rights of the real property must be synchronized with the establishment, transfer and elimination of the loan, and strictly from the subordinate relation of security right in rem, it hinders the flexible use of corporate finance and could not be efficient for the mortgage from foreign legislative case, the security rights of the real property have the independent value and are not subordinate to the law of obligation. The non-accessory land charge in Germany is more widely used in society than the general mortgage. In Japan, remortgage and mortgage transfer is allowed under certain condition. It makes mortgage right more convenient for financing. In recent years, the civil legislation in Taiwan has a tendency from the multi-country mixed legal system in Europe to the individual legal system in England and America. In recent years, the countries of European Community gradually combined their laws for security rights of the real property. Both the Segre report in 1966 and the suggestion of UINL in 1987 proposed to use the non-accessory land charge of German and abstract security rights of the real property of Swiss and the related regulations of the non-accessory land charge of Poland. In addition, the Basic Guidelines for a Eurohypothec drafted in Berlin in 2004 and 2005 promote non-accessory real estate security rights in the world. Is the non-accessory real estate security rights proper for Taiwan’s situation and practice? Is it possible for us to legislate the similar law and to meet the international standards？ Therefore, the paper starts from the discussion of the security rights, introduces the types of security rights of the real property, and analyzes the differences in the legal system of security rights of the real property in Germany, Japan, Taiwan. And then the institutional evolution of obligations and rights in rem, the reasons for the numerus clausus principle, the current development of the numerus clausus principle and the rise of atypical security rights will be discussed. Finally, it will be concluded with possible method for incorporating the non-accessory security rights of the real property into our legal system in the future.