返還借名登記不動產訴訟之研究：以請求權基礎及其要件事實之分析為中心

Abstract

借名登記契約在我國十分普遍，借名人與出名人間亦時常興訟。如借名人欲對出名人提起返還借名登記不動產之訴訟，在此等訴訟中，勢必釐清以下兩個實體法上問題：不動產所有權誰屬？返還請求的請求權基礎為何？就此，文獻上雖有出名人為所有權人說、借名人為所有權人說等諸說，惟本文以為此等理論均未能妥適說明各種借名登記之案例類型，故應視具體事實背景而為相應區分（下稱「區分說」）始為可採。本文並論證借名人之請求權基礎包含契約上請求權、不當得利請求權，且可能兼有物上的妨害除去請求權。 此外，本文亦從程序法的觀點立論。我國最高法院雖對於借名登記返還訴訟之舉證責任分配有一定標準，惟其法律依據並不明確。本文依據區分說之見解，全面檢視借名登記返還訴訟之舉證責任應如何分配，同時斟酌各種可能的間接證據之推認力如何。

It is a prevalent practice in Taiwan to register one’s real estates under borrowed names, and many litigations arise out of the agreements of borrowing names (hereinafter, “name-borrowing agreements”). When the borrower of names files a suit to reclaim the registered property, two prerequisite questions must be answered: (1) To whom does the ownership belong? (2) What are the statutory basis for such claims? Although a few theories have been proposed in literatures as attempts to dissect the legal relations under name-borrowing agreements, there are, as this paper points out, weaknesses in these theories, i.e., they do not satisfactorily account for all pertinent cases. This paper argues that all name-borrowing agreements must be classified into three categories according to their factual background (hereinafter, “classification theory”), and that the statutory basis for claims should include contractual claims, unjust enrichment, and, where applicable, claims in rem. Aside from the substantive law issues mentioned above, this paper also explores the procedural implications of such issues. Although the Supreme Court adheres to a specific standard of allocating burden of proof, the rationale of its standard is neither clearly articulated nor well-constructed. In this light, this paper applies classification theory and suggests a more detailed and thorough analysis of burden of proof in litigations involving name-borrowing agreements. Moreover, this paper examines possible indirect evidence that the parties might produce, and weighs its probative force in substantiating a case.