情事變更原則於租金增減或地租調整之適用

Abstract

於情事變更原則中，我國與日本相較，要件上並無太大不同，然就效果言，二國均區分為第一次效力及第二次效力，惟就再交涉義務，我國並未如日本蓬勃發展。衡諸現代契約多樣，多涉及非法律之專業知識，法院是否有能力調整不無疑問，且法院裁量未必與當事人真意相符，又觀我國立法例，對於使當事人為再交涉似非陌生，故於立法政策上似得考慮引進作為情事變更原則效果之一，由當事人自主協商，回歸私法自治以實現契約自由。 就情事變更原則與租賃，本文關注日本與我國之租金增減或調整請求權。日本之借地情形包含我國土地租賃，其借家對應我國即屬建物租賃，而本文就我國實務適用情形區分為「公告地價變動型」及「疫情衝擊型」，大致上分別對應日本借地情形及借家。本文就租金調整請求權之要件、效果、租金及遲延利息之起算點以及現行法適用情形為探討及二國比較，結論上我國民法第442條之區分有所不當且仍有不足，其效果似得引進再交涉義務及增加契約終止；而就請求法院核定租金之訴中之租金及遲延利息之起算點以及上述本文類型化之實務二案型均有其議題需要處理。 就情事變更原則與地上權，本文著重日本地租等增減請求權與我國地租調整請求權，並就我國地租酌定請求權及地上權住宅地租為相關討論。關於地租調整請求權，除其請求法院核定「地租」之訴可參考請求法院核定「租金」之訴以外，本文分析實務發展，發現其似為公告地價變動型之發展結果，而與立法脈絡及實務見解相互呼應，然其亦有特殊之處。就地租酌定請求權，其租金或遲延利息之起算點與請求法院核定地租或租金之訴類似，而就酌定地租標準之爭議，實務所參酌之最高法院見解有其特殊考量，不可盲目適用；又訴訟上請求給付地租是否含有酌定地租之意，比較日本法後，最高法院見解不無可議。 最後就地上權住宅地租，本文將地上權住宅分為3種模式，而就實務爭議，本文就使用權住宅（第二代地上權住宅）與地租及其計付標準為討論。關於前者，本文認為相較於一般地上權情形，地上權住宅應更為細緻化處理；關於後者，除學說見解有可議之處外，與日本法比較後，可發現我國實務與其殊途同歸。

In terms of the principle of change in circumstances, there is not much difference in the requirements between our country and Japan. Both nations distinguish between the first and second legal effect. However, in terms of the obligation of re-negotiate, our country has not experienced the same vigorous development as Japan. Given the diversity of modern contracts, many of which involve specialized knowledge beyond the realm of law, there is doubt as to whether the court has the ability to adjust, and the judicial discretion may not be in line with the true intention of the parties. Also, considering other legislative example in our country, it seems that it is not unfamiliar to make the parties to re-negotiate. Therefore, from legislative policy standpoint, it may be worth considering the introduction of such a principle as part of the effect of rebus sic stantibus, empowering the parties to autonomously negotiate, thus reverting private autonomy to achieve freedom of contract. The paper focuses on the principle of change in circumstances concerning lease, specifically addressing the claims to request rental of lease increase, decrease, or adjustment in both Japan and our country. Land leasing conditions in Japan encompass land leasing in our country and its building leasing corresponds to our context. This paper categorizes the judicial applications in our country into two types: ” Announced Land Value Fluctuation” and ” Covid-19 Impact”, roughly corresponding to land leasing and building leasing in Japan, respectively. The article explores and compares the requirements, effects, starting time of rental of lease and moratory interest, as well as the current legal application scenarios regarding the claim to request rental of lease adjustment in both countries. In conclusion, the differentiation under Article 442 of the Civil Code in our country appears inappropriate and insufficient. Its legal effect might require introducing an obligation of re-negotiate and incorporating contract termination. Furthermore, issues related to the starting time of rental of lease and moratory interest in litigation, as well as the two judicial applications categorized in this article require handling of specific issues. With respect to the principle of change in circumstances and superficies, the article emphasizes on the claim to request increase, decrease or adjustment in rental of superficies in both Japan and our country, also discusses the claim to request fixing the rental of superficies and the building of superficies. Regarding the claim to request rental of superficies adjustment, in addition to drawing reference from litigation of rental of lease, the paper analyzes judicial developments. It reveals that the claim appears to be an outcome of the development related to” Announced Land Value Fluctuation”. This development aligns with legislative context and judicial perspective. However, there are also unique aspects. With regard to the claim to request fixing the rental of superficies, the starting time of rental of lease and moratory interest is similar to litigation of rental of lease or superficies. However, concerning disputes over the criteria for fixing the rental of superficies, it is crucial not to blindly apply the judicial considerations derived from the Supreme Court''s perspective in litigation. Additionally, the Supreme Court''s opinion on whether the claim for performance of rental of superficies in litigation implies request for fixing of rental of superficies isn’t uncontroversial when compared with the Japanese law. Finally, regarding the rent of the building of superficies, this paper categorizes the building of superficies into three models. Concerning the judicial controversy, the discussion in this paper focuses on the building of the right of use (the second generation of the building of superficies) and the rent and its payment standard. As for the former, his article believes that compared with the general superficies, the building of superficies should be handled with greater detail. Regarding the latter, apart from the controversial views of the doctrine, a comparison with Japanese law reveals that judicial applications in our country ultimately converge towards similar outcomes.