論強制執行法上不動產抵押與物上負擔之關係—以銀行對授信客戶之擔保物權為中心

Abstract

我國銀行業傳統之獲利來源向以客戶之存、放款利差為主，故授信業務近百年來屬銀行業最為重要之業務當無疑義，而不動產為銀行授信業務最主要擔保品，在各種授信擔保方式中，不動產抵押佔極大之比例，是故不動產抵押權對銀行授信業務之重要性，不言可喻。 由於不動產之價值較高，債務人動輒與其他債權人，在不動產上設定各種權利，如租賃權、擔保物權、用益物權等。不動產拍賣時，存在於不動產上之各種權利如何調整，於拍賣後繼續存在，抑或拍賣後消滅？實為不動產之重要課題。 拍賣為強制執行不動產之重要程序，亦為抵押權之主要實行方法，雖然抵押物拍賣時，涉及諸多問題，但如何使抵押物拍賣價格提昇，保障被擔保債權滿足受償，不僅對抵押權人債權回收而言甚為重要，即就債務人減輕債務負而言，亦不容忽視。在拍賣程序中，最令應買人心存疑慮者，係抵押物上是否存在負擔及拍定後不動產是否點交之問題。其中當以租賃負擔最為應買人所重視。 本文希冀在堅實的法理基礎上，探討不動產抵押與物上負擔（特別指租賃關係）之關係，期能保障銀行債權，甚至達到銀行與授信客戶雙贏的境界。

The main profits of the banking industry in our country are mainly from the discrepancies between interest rates of loans and deposits. As a result, it is no doubt that the credit business has been being the most important business in the banking industry for almost 100 years. And, real estates are the majority of collaterals for the credit business. Real estate mortgage accounts for a very large portion among the various credit guarantee methods, which causes the importance of real estate mortgage to the bank's credit business is self-evident. Since the values of the real estates are relatively high, the debtors often create various rights on the real estates with other creditors，such as lease rights, secured rights in rem, rights of acquiring profit in rem, etc. When auctioning the real estates, how to adjust these various rights on the real estates? Will the rights continue to exist or be extinguished after the auction? This is really an important issue of the real estates. An auction is an important procedure of compulsory execution and also the majority way of proceeding a mortgage right; and many issues are involved when auctioning a real estate. How to increase the auction price to protect he creditor right, which is not only very important for satisfying the creditor’s claim but also significant for easing the debtor’s burden. During the auction, the things that always worry the bidders are whether any duties shall be borne by and whether the property shall be checked and delivered to the bidders, among which the burdens of lease most draw the attentions of the bidders. This thesis expects to probe into the relationship between property rights of mortgage and assumption duty in rem, especially into the relationship of lease, in order to protect the claims of bank and even to achieve a win-win situation for both the banks and their clients.