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Compulsory Enforcement against Illegal Construction in Banking Practice
illegal construction,essential illegal construction,procedural illegal construction,old illegal construction,new illegal construction,existing illegal construction,right of de facto disposal,third-party dissent,
|Publication Year :||2019|
This study discusses how illegal constructions, which have been long pre-existing and are still large in numbers in Taiwan, can be enforceable during civil compulsory enforcement proceedings in practice, where creditors can obtain payments and satisfaction of their claims through the seizure and auction of illegal constructions. The paper studies cases from banks and verdicts from courts of different levels, dividing the cases into three types based on the party against whom the enforcement action was taken (the builder, the buyer and the third-party), and analyzes the courts’ opinions on who can exercise dissent rights. The paper aims to provide references and basis for loan departments when accepting illegal constructions as collateral and for debt collection departments to better secure claims if a third party exercises dissent.
The study shows that the creditors of the proprietors were the big winners from a profiting point of view. While the banks are the creditors of the proprietors, during appraisal, whether the constructions indeed belong to the borrowers (or the collateral providers) should be verified with caution to prevent a third party from exercising its dissent right and prolong the legal process, or causing the banks’ failure to obtain the right of priority. From the many verdicts, the following are key points that are common in such legal dispute: a) whether the illegal construction is functionally and structurally independentfrom the original construction. Some scholars believe that an additional construction with independent doorways is not an appendage to the main construction. If it is not registered as a pledge separately, the lender does not have the right of priority; b) the person whom the property tax is registered under is only a taxpayer who fulfills his/her lawful duty and not to be inferred as an object in a civil lawsuit nor the proprietor; c) to whom the utility are billed is considered by the courts a matter of convenience, thus the name of the utility account cannot be used as a way to determine the owner.
|Appears in Collections:||事業經營法務碩士在職學位學程|
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|1.56 MB||Adobe PDF|
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