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大法官解釋表頭

(釋字第 164 號 )      友善列印PRINT  
Interpretation
J.Y.
Interpretation
NO.164 
Date 1980/7/18
Issue Is there any application of the provisions of the defunct prescription on the right to claim the removal of the interference by the owner of a registered real property?
Holding
1
    The right to claim the removal of the interference by the owner of a registered real property is not within the scope of the Interpretation No.107 of this Yuan. However, based on the nature of this right, there will be no application of the provision of the defunct prescription in Article 125 of the Civil Code either.
Reasoning
1
    For according to the provisions of Article 767 of the Civil Code, the rights of the owner of a thing, as to demanding its return from anyone who possesses it without authority or who seizes it, claiming the removal of the interference on those who interfere with his ownership and claiming the prevention of such interference on those who might interfere with it, are all for the purpose of preserving the complete exercise of the ownership, being the same in nature, and therefore as for whether each of them shall have the application of the provisions about the defunct prescription, there should be no diversity among these interpretations. If there is any diversity among them, not only it will unavoidably cause a self-contradiction in theory, but also it will cause difficulty in completely exercising the power of the ownership in practice. Interpretation No. 107 by this Yuan has expounded: “The right to claim the repossession by the owner of a registered real property does not have the application of the provision of the defunct prescription in Article 125 of the Civil Code.” If the right to claim the removal of the interference by the owner of a registered real property, the right to claim the cancellation of a registration implying the invalidating cause against the person whose name is registered in the register, for example, has the application of the provisions of the defunct prescription, it will be abolished by prescription if it is not exercised within fifteen years. Then this would unavoidably cause an inconsistency between the right in name and the right in reality, and the real owner of a thing could not actually possess the thing, and the purpose of this Article could not be followed. Therefore although the right to claim the removal of the interference by the owner of a registered real property is not within the scope of the above-mentioned Interpretation, based on the nature of this right, there will be no application of the provision of the defunct prescription in Article 125 of the Civil Code either.

'Translated by Jer -Shenq Shieh.

Opinion Chinese only
 

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