法律文书:迳行导致物权变动之研判——以代物清偿为切入点

The Legal Document: A Studying of Direct Effecting the Alteration of Real Right

代物清偿中"代物"须交付或登记后物权变动。自三类诉讼之诉求、法律文书之趣旨及其原有效力考量,迳行导致物权变动者,于判决范畴,因形成力之故惟形成判决始足当之。形成之诉调解书因未蕴含法院之价值判断,故不在此列。形成判决实务中所见有三:撤销暴利法律行为之判决、撤销之诉之判决、分割共有物并宣告地役权消灭之判决。于裁定范畴,不动产、登记之特定动产及其他财产权之执行裁定中,物权变动始于拍定人缴清价金或以物抵债裁定送达权利人,执行回转裁定亦具此功效。

The ownership transfers at the time of surrogate＇ s delivery or registration Datio in solutum. Considered the appeal of these three kinds of suits, the objective of the legal documents and its original effect, when coming to the area of judgments, it will appear like that only formative judgments can effect the alteration of real right without the object＇ s delivery or registration, and it＇ s all because of its formativa vis. The mediation decision to the action for formation does not embrace the valuation from the judges. That＇ s to say, it is excluded. In practice there are three kinds of forming judgments labeled as follows ： verdict to repeal legal profiteering, verdict of the actio pauliana, verdict to segment the common possession and to proclaim the expiry of easement. When comes to ruling, only implementation ruling can function like this and it is limited to the implementation on real estate, specific movables and other property rights which need registration to announce the alteration of real right. On this occasion, once the highest bidder pays up the entire price or the ruling of paying- a- debt-in- kind assets is severed to the oblige, the real right alters.