動產擔保交易法第二八條第一項第一款釋義上之疑問

游進發

中文摘要

依動產擔保法交易法第二八條第一項第一款規定,保留買受人不依約定償還價款者,保留出賣人得取回占有標的物。本條項款立法理由謂:「附條件買賣在條件完成前,物之所有權仍屬出賣人,故有對其追及權‧‧‧‧‧‧」惟附條件買賣買受人,占有買賣標的物係屬有權,附條件買賣出賣人縱為買賣標的物所有權人,亦非當然得請求返還買賣標的物占有。就此,立法理由並未說明。 就某一問題,立法者如欲不同於民法處置,而為特別規定者,應詳附理由。否則,解釋上徒生無謂爭議,法律適用上徒生困擾。此觀諸動產擔保交易法第二八條第一款第一項曖昧不明之文義,並非理所當然、無能為力之立法理由,即明。

 

Dogmatical Issue upon Article 28, Paragraph 1, Subparagraph 1 of the Act of Secured Transaction for Movable Property

Chin-fa You

abstract

Article 28, Paragraph 1, Subparagraph 1 of the Act of Secured Transactions for Movable Property stated that seller can repossess goods form buyer, when buyer defaults with payment of price. The reason of the foregoing legislation stated that seller maintain the ownership of goods until the condition occurs. Therefore, seller is authorized to repossesses the goods because he owns the goods. However, in case of conditional sales that buyer has right to hold the goods, then, seller does not certainly have right to repossess the goods from buyer even though seller is the owner of the goods. But this regulation lacks of legislative reason. Nevertheless, when the legislator who expects to deal with a case disobeys the Civil Law and issue a special regulation should define the reason. Otherwise, it will only result in unreasonable debate and confusion. All of these can be found out through the ambiguous wording of Article 28, Paragraph 1, Subparagraph 1 of the Act of Secured Transactions for Movable Property and its legislative Reason which is self-evident and unable to resolute issues.