1D283

Ⅰ 重要名詞解釋 第一編

總則 ··························································· 3

第一章

法例 ··································································· 3

習慣法 ·············································································· 3 法理 ·················································································· 3 法律漏洞與填補 ······························································· 4

第二章

人 ······································································· 6

第一節

自然人 ······························································· 6

權利能力 ······································································· 6 胎兒之權利能力 ··························································· 6 死亡宣告 ······································································· 7 同時存在原則 ······························································· 7 行為能力 ······································································· 8 行為能力制度 ······························································· 8 意思能力 ······································································· 8 責任能力 ······································································· 8 人格權 ········································································ 11 –1–

慰撫金 ········································································ 11 人格權救濟機制 ························································· 11 姓名權 ········································································ 11 決定住所的標準 ························································· 12

第二節 第一款

法人 ································································· 13 通則 ································································· 13

法人 ········································································ 13 董事 ········································································ 14 董事代表權之限制 ·················································· 14 法人之侵權責任 ····················································· 14 第 28 條規定的類推適用 ········································ 15 解散 ········································································ 17 法人之清算 ····························································· 17 第二款 社團 ································································· 19 社員權 ····································································· 20 第三款 財團 ································································· 22

第三章

物 ····································································· 24

定著物 ············································································ 24 物的成分（部分） ························································· 24 處分 ················································································ 25

第四章

法律行為 ·························································· 26

第一節

通則 ································································· 26

法律行為 ····································································· 26 準法律行為 ································································· 26 負擔行為與處分行為 ·················································· 26 事實行為 ····································································· 27 脫法行為 ····································································· 27 –2–

強制規定與禁止規定 ·················································· 28

第二節

行為能力 ························································· 28

無意識 ········································································ 29 精神錯亂 ····································································· 29 允許 ············································································ 29 純獲法律上之利益 ······················································ 29 無損益法律行為（中性行為） ··································· 30 單獨行為 ····································································· 30 契約行為效力未定 ······················································ 30 承認 ············································································ 31 催告 ············································································ 31

第三節

意思表示 ························································· 32

意思表示 ····································································· 32 心中保留（真意保留、單獨虛偽意思表示） ············ 32 通謀虛偽意思表示 ······················································ 33 隱藏行為 ····································································· 34 信託行為 ····································································· 34 借名登記 ····································································· 34 錯誤 ············································································ 34 詐欺 ············································································ 36 脅迫 ············································································ 36 了解 ············································································ 37 撤回 ············································································ 37

第四節

條件及期限 ···················································· 38

條件 ············································································ 38 停止條件 ····································································· 38 解除條件 ····································································· 39 期待權 ········································································ 39 期限 ············································································ 40 –3–

第五節

代理 ································································· 40

代理 ············································································ 40 代理行為之瑕疵 ························································· 42 代理權係以法律行為授與者 ······································ 42 自己代理之禁止 ························································· 43 雙方代理（重複代理） ·············································· 44 無代理權人之責任 ····················································· 45

第六節

無效及撤銷 ···················································· 46

無權處分 ····································································· 47

第五章

期日及期間 ······················································ 48

第六章

消滅時效 ·························································· 49

消滅時效 ········································································ 49 除斥期間 ········································································ 49 消滅時效與誠信原則 ····················································· 50 消滅時效中斷 ································································· 51 消滅時效不完成 ····························································· 54 不可避之事變 ································································· 54 自然債務 ········································································ 55

第七章

權利之行使 ······················································ 56

權利失效法理 ································································· 56 自助行為 ········································································ 57

第二編

債 ····························································· 58

第一章

通則 ································································· 58

第一節 第一款

債之發生 ························································· 58 契約 ································································· 58

雙務契約 ································································· 58 –4–

有償契約與無償契約 ·············································· 58 要式與不要式契約 ·················································· 58 要因契約與不要因契約 ·········································· 58 預約與本契約 ························································· 59 必要之點與非必要之點 ·········································· 59 要約 ········································································ 59 交錯要約 ································································· 60 要約之引誘 ····························································· 60 要約之拘束力 ························································· 60 承諾 ········································································ 60 意思實現 ································································· 62 懸賞廣告 ································································· 63 優等懸賞廣告 ························································· 64 第二款 代理權之授與 ·················································· 65 授權行為之方式 ······················································ 65 共同代理 ································································· 65 表見代理 ································································· 66 無權代理 ································································· 66 第三款 無因管理 ························································· 67 無因管理 ································································· 67 適法無因管理 ························································· 69 不適法無因管理 ······················································ 69 不法管理 ································································· 69 第四款 不當得利 ························································· 70 不當得利 ································································· 70 給付係履行道德上義務 ·········································· 71 給付係履行期前清償 ·············································· 71 給付係明知非債而清償 ·········································· 71 因不法原因而為給付 ·············································· 71 –5–

本於該利益更有所取得 ·········································· 72 償還其價額 ····························································· 72 所受之利益已不存在 ·············································· 72 轉得人責任 ····························································· 73 無償讓與 ································································· 73 第五款 侵權行為 ························································· 73 共同加害行為 ························································· 74 共同危險行為 ························································· 74 造意行為 ································································· 74 幫助行為 ································································· 74 公務員之侵權行為 ·················································· 75 識別能力 ································································· 76 執行職務 ································································· 76 定作人責任 ····························································· 77 支出之人 ································································· 79 醫療費用 ································································· 79 增加生活需要 ························································· 79 殯葬費用 ································································· 79 喪失或減少勞動能力 ·············································· 80 情節重大 ································································· 81 物因毀損所減少之價額 ·········································· 81 依關於不當得利之規定 ·········································· 82

第二節

債之標的 ························································· 82

債之標的 ····································································· 82 給付（又稱主給付義務） ·········································· 82 附隨義務 ····································································· 82 種類之債 ····································································· 83 交付其物之必要行為之完結 ······································ 83 貨幣之債 ····································································· 84 –6–

利息 ············································································ 84 選擇之債 ····································································· 86 任意之債 ····································································· 86 損害賠償法之目的 ······················································ 88 不能回復原狀 ····························································· 88 回復顯有重大困難 ······················································ 88 損害的意義 ································································· 89 所受損害 ····································································· 90 所失利益 ····································································· 90 損益相抵 ····································································· 90 過失相抵 ····································································· 91 基於其物之所有權對於第三人之請求權 ···················· 91

第三節 第一款

債之效力 ························································· 92 給付 ································································· 92

故意責任 ································································· 92 過失責任 ································································· 92 事變 ········································································ 93 依第 187 條之規定 ·················································· 93 代償請求權 ····························································· 94 債務不履行 ····························································· 95 給付不能 ································································· 95 不完全給付 ····························································· 96 債務不履行與非財產上損害賠償 ··························· 97 第二款 遲延 ································································· 98 給付遲延 ································································· 98 不可抗力 ································································· 99 因遲延而生之損害 ·················································· 99 期限利益行為之替代賠償 ······································ 99 受領遲延 ······························································· 100 –7–

第三款

保全 ······························································· 102

保全 ······································································ 102 代位權 ··································································· 102 撤銷權 ··································································· 103 第四款 契約 ······························································· 104 標的不能 ······························································· 104 信賴利益 ······························································· 105 履行利益 ······························································· 105 定金 ······································································ 106 違約金 ··································································· 107 準違約金 ······························································· 108 解除權 ··································································· 109 解除權不可分性 ··················································· 110 損害賠償之請求 ··················································· 110 同時履行抗辯權 ··················································· 112 不安抗辯權 ··························································· 112 依關於不當得利之規定 ········································ 113 危險負擔 ······························································· 113 第三人負擔契約 ··················································· 114 第三人利益契約 ··················································· 114

第四節

多數債務人及債權人 ································ 115

可分之債 ··································································· 115 可分給付 ··································································· 115 不可分之債 ······························································· 115 連帶之債 ··································································· 116 連帶債務 ··································································· 116 不真正連帶債務 ······················································· 116 連帶債務人之求償權 ················································ 118 連帶債務人之代位權 ················································ 119 –8–

不可分之債 ······························································· 121 不可分債務 ······························································· 121 不可分債權 ······························································· 122

第五節

債之移轉 ······················································ 122

債之變更 ··································································· 122 債之移轉 ··································································· 123 債權讓與 ··································································· 123 擔保及其他從屬之權利 ············································ 123 從權利而與讓與人有不可分離關係者 ····················· 124 表見讓與 ··································································· 124 免責之債務承擔 ······················································· 125 契約承擔 ··································································· 125 併存的債務承擔 ······················································· 127 約定之併存的債務承擔 ············································ 127 營業合併 ··································································· 127

第六節 第一款

債之消滅 ······················································ 128 通則 ······························································· 128

債之消滅 ······························································· 128 第二款 清償 ······························································· 128 第三人清償 ··························································· 129 有利害關係第三人之清償 ···································· 130 未定期債務 ··························································· 131 代物清償 ······························································· 132 間接給付 ······························································· 132 債之更改 ······························································· 133 清償抵充 ······························································· 134 第三款 提存 ······························································· 135 提存 ······································································ 135 第四款 抵銷 ······························································· 136 –9–

抵銷 ······································································ 137 第五款 免除 ······························································· 138 免除 ······································································ 139 第六款 混同 ······························································· 139

第二章

各種之債 ························································ 140

第一節 第一款

買賣 ······························································ 140 通則 ······························································· 140

雙務契約 ······························································· 140 第二款 效力 ······························································· 140 瑕疵擔保責任 ······················································· 141 權利瑕疵擔保責任 ················································ 141 瑕疵 ······································································ 142 債務人支付能力 ··················································· 142 危險移轉 ······························································· 143 物之瑕疵擔保責任 ················································ 143 重大過失 ······························································· 144 物之瑕疵擔保責任與不完全給付之債務不履行責任145 請求不履行之損害賠償 ········································ 146 另行交付請求權 ··················································· 147 瑕疵補正 ······························································· 147 物之瑕疵擔保效力之競合 ···································· 147 除斥期間 ······························································· 148 危險負擔 ······························································· 149 利益 ······································································ 150 危險 ······································································ 150 交付 ······································································ 150 送交方法 ······························································· 151 第三款 買回 ······························································· 152 –10–

買回 ······································································ 152 第四款 特種買賣 ······················································· 153 貨樣買賣 ······························································· 154 分期付款買賣 ······················································· 154 附條件買賣 ··························································· 154 拍賣 ······································································ 155

第二節

互易 ······························································ 156

互易 ·········································································· 156

第三節

交互計算 ······················································ 157

第四節

贈與 ······························································ 158

附負擔之贈與 ··························································· 159 目的性贈與 ······························································· 159 負擔以公益為目的 ···················································· 160 窮困抗辯 ··································································· 161 依關於不當得利之規定 ············································ 161

第五節

租賃 ······························································ 162

買賣不破租賃 ··························································· 163 修繕義務 ··································································· 165 轉租 ·········································································· 168 租賃權之讓與 ··························································· 168

第六節 第一款

借貸 ······························································ 174 使用借貸 ······················································· 174

使用借貸 ······························································· 174 單務契約 ······························································· 174 第二款 消費借貸 ······················································· 176 使用借貸 ······························································· 176

第七節

僱傭 ······························································ 178 –11–

僱傭契約 ··································································· 179

第八節

承攬 ······························································ 180

製造物供給契約 ······················································· 181 不規則承攬 ······························································· 181 次承攬 ······································································ 181 瑕疵非重要 ······························································· 182 危險 ·········································································· 186

第八節之一 第九節

旅遊 ······················································ 187

出版 ······························································ 190

委託出版 ··································································· 191 出版權 ······································································ 191

第十節

委任 ······························································ 194

委任契約 ··································································· 194

第十一節

經理人及代辦商 ···································· 199

經理權 ······································································ 199 代辦權 ······································································ 201

第十二節

居間 ·························································· 202

指示居間 ··································································· 202 媒介居間 ··································································· 202

第十三節

行紀 ·························································· 205

第十四節

寄託 ·························································· 207

法定寄託 ··································································· 211

第十五節

倉庫 ·························································· 212

倉單 ·········································································· 213

第十六節 第一款

運送 ·························································· 215 通則 ······························································· 215 –12–

運送 ······································································ 215 第二款 物品運送 ······················································· 216 物品運送 ······························································· 216 提單 ······································································ 216 相繼運送 ······························································· 219 第三款 旅客運送 ······················································· 223 旅客運送 ······························································· 223

第十七節

承攬運送 ················································· 224

承攬運送 ··································································· 225

第十八節

合夥 ·························································· 226

合夥契約 ··································································· 226 有限合夥 ··································································· 226 合夥財產 ··································································· 227 公同共有 ··································································· 227 損益分配 ··································································· 229 合夥人之交替 ··························································· 230 合夥之變更 ······························································· 231 聲明退夥 ··································································· 232 法定退夥 ··································································· 232 合夥人之開除 ··························································· 232 入夥 ·········································································· 233

第十九節

隱名合夥 ················································· 235

隱名合夥 ··································································· 235

第十九節之一 第二十節

合會 ················································· 237

指示證券 ················································· 239

指示證券之承擔 ······················································· 240 禁止讓與 ··································································· 241

第二十一節

無記名證券 ········································· 242 –13–

提示期間 ··································································· 244

第二十二節

終身定期金 ········································· 245

要式契約 ··································································· 245

第二十三節

和解 ······················································ 246

和解 ·········································································· 246

第二十四節

保證 ······················································ 247

損害擔保契約 ··························································· 247 連帶保證 ··································································· 247 無限保證 ··································································· 248 有限保證 ··································································· 248 先訴抗辯權 ······························································· 249 共同保證（保證連帶） ············································ 250 連帶保證 ··································································· 250 保證人之求償權 ······················································· 250 求償保證 ··································································· 251 定期保證 ··································································· 252 信用委任 ··································································· 253

第二十四節之一

人事保證 ···································· 254

第三編

物權 ························································ 256

第一章

通則 ······························································· 256

物權 ·············································································· 256 物權法定主義 ······························································· 256 物權法定主義之緩和化 ················································ 256 原始取得與繼受取得 ··················································· 257 公示原則與公信原則 ··················································· 257 物權行為 ······································································ 258 設權登記 ······································································ 258 –14–

宣示登記 ······································································ 259 處分行為 ······································································ 259 登記推定之效力 ··························································· 259 不動產物權善意取得 ···················································· 260 預告登記 ······································································ 260 讓與合意 ······································································ 260 交付 ·············································································· 261 混同 ·············································································· 261 物權之拋棄 ··································································· 262

第二章

所有權 ··························································· 262

第一節

通則 ······························································ 262

所有權 ······································································ 262 特性 ·········································································· 263 占有 ·········································································· 263 使用 ·········································································· 263 收益 ·········································································· 263 處分 ·········································································· 264 排除他人干涉 ··························································· 264 所有物返還請求權 ···················································· 265 除去妨害請求權 ······················································· 265 防止妨害請求權 ······················································· 265 取得時效 ··································································· 266 取得時效之中斷 ······················································· 267

第二節

不動產所有權 ············································· 267

「償金」與「鄰地」之意義 ···································· 269 自落 ·········································································· 274

第三節

動產所有權 ················································· 276

動產所有權之善意取得（善意受讓、即時取得） ··· 276 –15–

無主物之先占 ··························································· 277 遺失物 ······································································ 278 遺失物之拾得 ··························································· 278 埋藏 ·········································································· 280 添附 ·········································································· 281 附合 ·········································································· 281 重要成分 ··································································· 281 混合 ·········································································· 282 加工 ·········································································· 282

第四節

共有 ······························································ 283

應有部分 ··································································· 283 應有部分之處分 ······················································· 284 應有部分的讓與 ······················································· 284 應有部分設定負擔 ··················································· 284 應有部分的出租 ······················································· 285 應有部分的拋棄 ······················································· 285 共有物之處分 ··························································· 285 保存行為 ··································································· 286 共有物之改良 ··························································· 286 分管契約 ··································································· 286 共有人之外部關係 ··················································· 287 共有物分割請求權 ··················································· 288 共有物之分割 ··························································· 289 移轉主義 ··································································· 291 應有部分有抵押權或質權之處理 ····························· 291 擔保責任 ··································································· 292 公同共有 ··································································· 293 準共有 ······································································ 294

–16–

第三章

地上權 ··························································· 295

第一節

普通地上權 ················································· 295

普通地上權 ······························································· 295 地上權人之請求補償權 ············································ 299

第二節

區分地上權 ················································· 300

區分地上權 ······························································· 300

第四章

（刪除） ······················································· 302

永佃權 ·········································································· 302

第四章之一

農育權 ···················································· 302

農育權 ·········································································· 302

第五章

不動產役權 ···················································· 305

不動產役權 ··································································· 305 不動產役權之從屬性 ···················································· 306 不動產役權之不可分性 ················································ 306 不動產役權之不具獨佔性 ············································ 307 不動產役權之不可分性 ················································ 308

第六章

抵押權 ··························································· 310

第一節

普通抵押權 ················································· 310

擔保物權 ··································································· 310 擔保物權之通性 ······················································· 310 普通抵押權 ······························································· 311 抵押權之擔保範圍 ···················································· 312 從物 ·········································································· 313 建築物之附加或增建部分 ········································ 313 從權利 ······································································ 314 抵押權人之次序權 ···················································· 315 –17–

抵押權之不可分性 ··················································· 316 抵押權之從屬性 ······················································· 317 抵押權人之次序權 ··················································· 318 抵押權之實行 ··························································· 320 流押契約之禁止（流抵契約之禁止、流質契約之禁止） ·················································································· 321 共同抵押權 ······························································· 322 法定地上權 ······························································· 324 併付拍賣 ··································································· 326 物上保證人 ······························································· 327 抵押權之代位性（抵押權之物上代位性、抵押權之代 物擔保性） ······························································· 328

第二節

最高限額抵押權 ········································· 329

最高限額抵押權 ······················································· 329 獨立讓與 ··································································· 332

第三節

其他抵押權 ················································· 335

權利抵押權 ······························································· 335 法定抵押權 ······························································· 335

第七章

質權 ······························································· 336

第一節

動產質權 ······················································ 336

動產質權 ··································································· 336 動產質權之善意取得 ················································ 337 責任轉質與承諾轉質 ················································ 338 流質之禁止 ······························································· 339 最高限額質權 ··························································· 341 營業質 ······································································ 342

第二節

權利質權 ······················································ 342

權利質權 ··································································· 342 –18–

第八章

典權 ······························································· 346

絕賣條款 ······································································ 346 轉典 ·············································································· 347 典物回贖權 ··································································· 349 找貼 ·············································································· 351

第九章

留置權 ··························································· 352

留置權 ·········································································· 352 留置權標的物範圍 ······················································· 353 緊急留置權 ··································································· 354 留置權之不可分性（§932） ······································ 354 法定留置權 ··································································· 356

第十章

占有 ······························································· 356

直接占有 ······································································ 356 事實上管領力 ······························································· 356 間接占有 ······································································ 357 輔助占有 ······································································ 357 善意受讓 ······································································ 359 盜贓遺失物之回復請求權 ············································ 360 無記名證券 ··································································· 361 必要費用 ······································································ 362 有益費用 ······································································ 363 占有人之自力救濟 ······················································· 364 占有人之物上請求權 ···················································· 364 準占有 ·········································································· 366

第四編

親屬 ······················································· 367

第一章

通則 ······························································· 367

血親 ·············································································· 367 –19–

親等 ·············································································· 367 姻親 ·············································································· 368 姻親親等 ······································································ 368

第二章

婚姻 ······························································· 369

第一節

婚約 ······························································ 369

婚約 ·········································································· 369 婚約之無效與撤銷 ··················································· 370 解除婚約 ··································································· 371 贈與物之返還 ··························································· 372

第二節

結婚 ······························································ 372

結婚時證人之資格 ··················································· 373 結婚登記 ··································································· 373 重婚 ·········································································· 374 釋字第 552 號之評析 ················································ 375 因被詐欺脅迫結婚之撤銷 ········································ 377 撤銷之不溯及既往 ··················································· 378

第三節

婚姻之普通效力 ········································· 379

別居制度與事實上別居 ············································ 379 日常家務 ··································································· 380 家庭生活費 ······························································· 380

第四節

夫妻財產制 ················································· 381

第一款

通則 ······························································· 381

第二款

法定財產制 ··················································· 382

自由處分金之協議 ················································ 383 自由處分金之性質 ················································ 384 夫妻間於婚姻存續中有贈與財產時剩餘財產之 分配 ······································································ 386 –20–

民法第 1030 條之 3 第 2 項所稱之「義務人」，是否 包括義務人之繼承人在內？ ································· 388 第三款 約定財產制 ···················································· 389 第一目

共同財產制 ························································· 389

夫妻財產 ··························································· 389 第二目

（刪除） ···························································· 391

第三目

分別財產制 ························································· 391

第五節

離婚 ······························································ 392

離婚意思 ··································································· 392 重婚 ·········································································· 393 合意性交 ··································································· 393 不堪同居之虐待 ······················································· 393 夫妻間之惡意遺棄 ···················································· 394 意圖殺害他方 ··························································· 394 不治之惡疾 ······························································· 394 重大不治之精神病 ···················································· 394 生死不明已逾三年 ···················································· 394 因故意犯罪經判處有期徒刑逾六月 ························· 394 破綻主義 ··································································· 395 會面交往權 ······························································· 396 離婚後父母對未成年子女之權利義務行使與負擔 ··· 396 離婚損害與離因損害 ················································ 398 贍養費之給與 ··························································· 399 學者對民法第 1058 條修正後之質疑 ······················· 399

第三章

父母子女 ······················································· 400

母無兄弟 ······································································ 400 婚生子女 ······································································ 401 婚生推定 ······································································ 402 –21–

婚生否認 ······································································ 404 非婚生子女 ··································································· 404 準正 ·············································································· 405 任意認領 ······································································ 405 擬制認領 ······································································ 406 認領之否認 ··································································· 407 強制認領 ······································································ 408 撤銷認領 ······································································ 409 收養 ·············································································· 409 直系血親 ······································································ 410 直系姻親 ······································································ 410 夫妻應共同收養 ··························································· 411 同時為二養子女之禁止 ················································ 411 夫妻一方被收養時應得他方之同意 ····························· 412 合意終止 ······································································ 416 親權 ·············································································· 418 懲戒 ·············································································· 418 特有財產之管理 ··························································· 419 第 1088 條第 2 項「處分」之意涵 ······························· 419 親權濫用禁止原則 ······················································· 421

第四章

監護 ······························································· 421

第一節

未成年人之監護 ········································· 421

未成年之監護 ··························································· 421

第二節 第五章

成年人之監護及輔助 ································ 427

扶養 ······························································· 429

扶養 ·············································································· 429 家庭生活費用負擔義務與夫妻扶養義務之不同 ·········· 431 受扶養權利人須有受扶養之必要 ································· 432 –22–

第六章

家 ··································································· 434

第七章

親屬會議 ······················································· 435

第五編

繼承 ······················································· 436

第一章

遺產繼承人 ···················································· 436

同時存在原則 ······························································· 437 代位繼承 ······································································ 437 再轉繼承 ······································································ 438 應繼分 ·········································································· 439 指定應繼分 ··································································· 439 法定應繼分 ··································································· 439 繼承權之喪失 ······························································· 440 故意致被繼承人或應繼承人於死，或雖未致死，因而 受刑之宣告者 ······························································· 441 以詐欺或脅迫使被繼承人為關於繼承之遺囑，或使其 撤回或變更之者 ··························································· 441 對於被繼承人有重大虐待或侮辱情事，經被繼承人表 示不得繼承者 ······························································· 442 繼承回復請求權 ··························································· 442 繼承回復請求權與物上返還請求權之關係 ·················· 443

第二章

遺產之繼承 ···················································· 443

第一節

效力 ······························································ 443

當然繼承主義 ··························································· 443 概括繼承 ··································································· 444 概括繼承有限責任 ···················································· 444 限定繼承 ··································································· 444 積極財產（權利） ···················································· 445 消極財產（義務） ···················································· 445 –23–

一身專屬之權利義務 ················································ 445 以「所得遺產」負清償責任 ···································· 446 遺產酌給請求權 ······················································· 446 共同繼承之公同共有 ················································ 448

第二節

（刪除） ······················································ 449

繼承人對被繼承人之權利義務不消滅 ····················· 449 遺產清冊之提出 ······················································· 449 公示催告 ··································································· 450 遺贈之交付 ······························································· 451 單純承認 ··································································· 453 法定無限責任之情形 ················································ 454

第三節

遺產之分割 ················································· 455

分割自由原則 ··························································· 455 分割之限制（例外） ················································ 455 遺囑分割 ··································································· 456 協議分割 ··································································· 456 裁判分割 ··································································· 456 擔保責任之性質 ······················································· 457 擔保責任之內容 ······················································· 457 扣還 ·········································································· 459 生前特種贈與 ··························································· 459 歸扣 ·········································································· 459

第四節

繼承之拋棄 ················································· 460

拋棄繼承 ··································································· 460 拋棄繼承人之效力 ··················································· 460

第五節 第三章

無人承認之繼承 ········································· 462

遺囑 ······························································· 464

第一節

通則 ······························································ 464 –24–

遺囑 ·········································································· 464 遺囑之內容 ······························································· 464

第二節

方式 ······························································ 465

自書遺囑 ··································································· 465 公證遺囑 ··································································· 466 密封遺囑 ··································································· 466 代筆遺囑 ··································································· 467 口授遺囑 ··································································· 467

第三節

效力 ······························································ 468

遺贈 ·········································································· 469

第四節

執行 ······························································ 470

遺囑執行人 ······························································· 470

第五節

撤回 ······························································ 474

遺囑之撤回 ······························································· 474

第六節

特留分 ·························································· 476

特留分 ······································································ 476 扣減權 ······································································ 477

–25–

Ⅱ 基本概念說明表 ．民法總則

基本概念說明表

01「債權」與「物權」之區別 ······································· 481 02 私法人之侵權責任 ····················································· 481 03「社團法人」與「財團法人」之區別 ························ 482 04「法律行為」與其「種類」 ······································· 483 05「負擔行為」與「處分行為」之區別 ························ 484 06 意思表示偶然不一致與意思表示不自由之區別 ········ 485 07「通謀虛偽意思表示」與「詐害債權」之區別 ········· 486 08「詐欺」與「脅迫」之區別 ······································· 487 09「狹義無權代理」與「表見代理」之區別 ················ 487 10「消滅時效」與「除斥期間」之區別 ························ 488 11「時效中斷」與「時效不完成」之區別 ···················· 489 12 權利的自力救濟 ························································· 490 13 無權處分與無權代理之區分 ······································ 490 14 法律行為無效、得撤銷與效力未定 ··························· 491 ．民法債

基本概念說明表

01「§188」與「§28」之區別 ····································· 493 02「§188」與「§224」之區別 ··································· 493 03「民法上商品責任」與「消保法上商品服務責任」之 差異 ············································································· 494

04「法定代理人責任」與「僱用人責任」之區別 ········· 495 05「定金」與「違約金」之區別 ··································· 496 06「物之瑕疵擔保」與「不完全給付」之區別 ············· 496 –26–

07「權利瑕疵擔保」與「不完全給付」之區別 ············· 497 08「§360」與「不完全給付」之區別 ·························· 498 09「解除」與「撤銷」之區別 ······································· 499 10「合法轉租」與「違法轉租」之區別 ························ 500 11「合夥」與「隱名合夥」之區別 ································ 500 12「隱名合夥」與「消費借貸」之區別 ························ 501 13「連帶保證」與「一般連帶債務」之差異 ················· 501 ．民法物權

基本概念說明表

01「動產」與「不動產」所有權之取得時效 ················· 503 02「分別共有」與「公同共有」之區別 ························ 504 03「用益物權」之種類 ·················································· 505 04「地上權」與「農育權」之區別 ································ 506 05「鄰地通行權」與「不動產役權」之區別 ················· 506 06「典權」與「抵押權」之區別 ··································· 507 07「擔保物權」之種類 ·················································· 508 08「不動產抵押」與「動產抵押」之區別 ···················· 508 09「質權」與「留置權」之區別 ··································· 509 10「無權占有之權利義務關係」 ··································· 509 11 用益物權之綜合比較 ················································· 511 ．民法親屬、繼承

基本概念說明表

01 法定夫妻財產制之今與昔 ·········································· 513 02「離婚損害」與「離因損害」之區別 ························ 515 03「繼承回復請求權」與「遺產酌給請求權」之區別 · 516 04「繼承回復請求權」與「所有物返還請求權」之區別 ····················································································· 516

05「繼承權拋棄」與「繼承回復請求權拋棄」之比較 · 517 06「限定繼承」與「拋棄繼承」之區別 ························ 517 –27–

07「遺贈」與「死因贈與」之區別 ································ 518 08 繼承之標的 ································································ 518 09「遺囑種類」之區分 ·················································· 519

–28–

重要名詞&概念說明

Ⅰ重要名詞解釋

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Ⅰ重要名詞解釋

第一編

總則

第一章

法例

民法 第一編

總則

第一章

法例

第 1 條（法源） ＊民事，法律所未規定者，依習慣；無習慣者，依法理。 ■名詞解釋 習慣法 意義：指有法之效力與價值者之慣行而言。 習慣法之成立，須以多年慣行的事實及普通一般人之 確信心為其基礎（17 上 613 判例）。 適用：習慣僅有補充法律之效力，故凡與成文法相 牴觸時，不論習慣成立先後，均不能認有法之效力。 〔參見，王澤鑑，民法總則，2014 年 2 月版，頁 72～74。〕

區辨：事實上的習慣（欠缺法之確信） 第一條指習慣法。 第一條以外所稱習慣，指事實上習慣。第二條可 兼指二者。 法律明定習慣（事實上慣行）應優先適用者，此 乃依法而適用，惟此習慣仍不具法源性質。 〔參見，王澤鑑，民法總則，2014 年 2 月版，頁 74～76。〕

法理 意義：指法律之一般原理原則而言，即多數人所承 認之共同生活的原理，例如：正義、衡平及利益衡 量等自然法的根本原理。亦指，應自隱含在立法、 法秩序或一般價值體系演繹而出的一般法律原則。

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Ⅰ重要名詞解釋

對不具溯及效力之新制定條文，得否作為「法理」 而適用於該法施行前成立之法律關係？ 原則應予否定，僅於例外符合各該法律行為之目 的及性質時，得以個別條文作為法理而適用。 亦即，須若無此規定時，亦得以該規定所涵蘊之 法律原則認作法理而為適用，即該規定具體化一 可資補充法律不備之原則。 〔參見，王澤鑑，民法總則，2014 年 2 月版，頁 76～79；王澤鑑， 民法總則在實務上的最新發展，台灣本土法學雜誌，第 52 期， 頁 75。〕

法律漏洞與填補 意義：指關於某一個法律問題，法律依其內在目的 及規範計劃，應有所規定而未設規定而言。 填補方法： 類推適用：乃比附援引，指將法律明定的法律效 果，適用到該法律未直接加以規定之事項，而該 事項法律上之重要特徵與該法律所明文規定者相 同而言。蓋相類似者，應作相同的處理，係本諸平等 原則，乃正義的要求。 目的性限縮：法律文義所涵蓋之範圍，由立法意 旨觀之，顯然太廣太籠統，未為必要的區分，未 將不該被一起規定的案例排除出去，故有將其適 用範圍，依其規範目的予以限縮的必要。 目的性擴張：法律文義所涵蓋之範圍，揆諸立法 意旨，顯然過窄，以致不能貫徹該規範的意旨， 故應將適用範圍擴張至該法律所未規範的部分。 創制性補充：當欲處理的案件在實證法上縱使經 過類推適用或目的性擴張，均不能找到其規範依 據時，便有根據法理，試擬規範的必要。 〔參見，王澤鑑，民法總則，2014 年 2 月版，頁 80～89。〕

第一編

總則

第一章

法例

第 2 條（適用習慣之限制） ＊民事所適用之習慣，以不背於公共秩序或善良風俗者 為限。 第 3 條（書面及簽名之方式） Ⅰ依法律之規定，有使用文字之必要者，得不由本人自 寫，但必須親自簽名。 Ⅱ如有用印章代簽名者，其蓋章與簽名生同等之效力。 Ⅲ如以指印、十字或其他符號代簽名者，在文件上，經 二人簽名證明，亦與簽名生同等之效力。 第 4 條（確定數量之準則－文字） ＊關於一定之數量，同時以文字及號碼表示者，其文字 與號碼有不符合時，如法院不能決定何者為當事人之 原意，應以文字為準。 第 5 條（確定數量之準則－最低額） ＊關於一定之數量，以文字或號碼為數次之表示者，其 表示有不符合時，如法院不能決定何者為當事人之原 意，應以最低額為準。

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Ⅰ重要名詞解釋

第二章 第一節

人

自然人

第 6 條（權利能力之始期與終期） ＊人之權利能力，始於出生，終於死亡。 ■名詞解釋 權利能力 指得為權利主體的地位或資格，即唯有具備「權利能 力」者，方得成為權利主體，而在法律上享受權利負 擔義務。 〔參見，王澤鑑，民法總則，2014 年 2 月版，頁 130。〕

第 7 條（胎兒之權利能力） ＊胎兒以將來非死產者為限，關於其個人利益之保護， 視為既已出生。 ■名詞解釋 胎兒之權利能力 民法對胎兒權利能力的範圍，係採概括原則，凡屬胎 兒將來可得享受之利益，均視為既已出生但不及於義 務之負擔；且為較完整保護胎兒之利益，學者通說採 法定解除條件說，係指胎兒於出生前，即取得權利能 力，倘將來死產時，則溯及的喪失其權利能力。 〔參見，王澤鑑，民法總則，2014 年 2 月版，頁 132。〕

第 8 條（死亡宣告） Ⅰ失蹤人失蹤滿七年後，法院得因利害關係人或檢察官 之聲請，為死亡之宣告。 Ⅱ失蹤人為八十歲以上者，得於失蹤滿三年後，為死亡 之宣告。

第一編

總則

第二章

人

Ⅲ失蹤人為遭遇特別災難者，得於特別災難終了滿一年 後，為死亡之宣告。

■名詞解釋 死亡宣告 乃自然人失蹤（離去其住所或居所）達一定期間，由 利害關係人或檢察官聲請法院為死亡宣告。其制度目 的在儘早確定失蹤人於其住所地懸而未決之法律關 係，而非剝奪其權利能力。 第 9 條（死亡時期之推定） Ⅰ受死亡宣告者，以判決內所確定死亡之時，推定其為 死亡。 Ⅱ前項死亡之時，應為前條各項所定期間最後日終止之 時。但有反證者，不在此限。 第 10 條（失蹤人財產之管理） ＊失蹤人失蹤後，未受死亡宣告前，其財產之管理，除 其他法律另有規定者外，依家事事件法之規定。 第 11 條（同時死亡之推定） ＊二人以上同時遇難，不能證明其死亡之先後時，推定 其為同時死亡。 ■名詞解釋 同時存在原則 係指在繼承法上，繼承人須於繼承開始當時生存，始 具繼承之資格，倘其時尚未出生（須注意胎兒利益之 保護）或已死亡，即非繼承人。通說及實務均認同時 死亡不符同時存在原則。 〔參見，王澤鑑，民法總則，2014 年 2 月版，頁 142。〕

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Ⅰ重要名詞解釋

第 12 條（成年之意義） ＊滿二十歲為成年。 第 13 條（未成年人之行為能力） Ⅰ未滿七歲之未成年人，無行為能力。 Ⅱ滿七歲以上之未成年人，有限制行為能力。 Ⅲ未成年人已結婚者，有行為能力。 ■名詞解釋 行為能力 即得以獨自之意思表示，使其行為發生法律上效果之 資格或地位而言。 與權利能力之不同在於：權利能力凡人因出生而當然 取得，非因死亡而不得剝奪，但非任何人均有行為能 力。 行為能力制度 法律為保護智慮不週之人及維護交易安全，而以行為 人之意思能力（識別能力）為基礎，依其已否達一定 年齡為標準，作為判斷法律行為是否生效之制度。 意思能力 指能判斷自己的行為在法律上效果的精神能力，亦即 對事物之利害關係有正常健全判斷之能力，其為行為 能力之基礎。 責任能力 指權利主體能否對其違反法律上義務之行為（包括侵 權能力及債務不履行能力）負擔損害賠償責任之能 力。責任能力者，以權利主體具有識別能力（民§§ 187、221）為基礎。 〔參見，王澤鑑，民法總則，2014 年 2 月版，頁 143～146。〕

第一編

總則

第二章

人

第 14 條（監護之宣告及撤銷） Ⅰ對於因精神障礙或其他心智缺陷，致不能為意思表示 或受意思表示，或不能辨識其意思表示之效果者，法 院得因本人、配偶、四親等內之親屬、最近一年有同 居事實之其他親屬、檢察官、主管機關或社會福利機 構之聲請，為監護之宣告。 Ⅱ受監護之原因消滅時，法院應依前項聲請權人之聲 請，撤銷其宣告。 Ⅲ法院對於監護之聲請，認為未達第一項之程度者，得 依第十五條之一第一項規定，為輔助之宣告。 Ⅳ受監護之原因消滅，而仍有輔助之必要者，法院得依 第十五條之一第一項規定，變更為輔助之宣告。 第 15 條（受監護宣告之人之行為能力） ＊受監護宣告之人，無行為能力。 第 15 條之 1（輔助宣告之聲請及撤銷） Ⅰ對於因精神障礙或其他心智缺陷，致其為意思表示或 受意思表示，或辨識其意思表示效果之能力，顯有不 足者，法院得因本人、配偶、四親等內之親屬、最近 一年有同居事實之其他親屬、檢察官、主管機關或社 會福利機構之聲請，為輔助之宣告。 Ⅱ受輔助之原因消滅時，法院應依前項聲請權人之聲 請，撤銷其宣告。 Ⅲ受輔助宣告之人有受監護之必要者，法院得依第十四 條第一項規定，變更為監護之宣告。 第 15 條之 2（受輔助宣告之人之行為能力） Ⅰ受輔助宣告之人為下列行為時，應經輔助人同意。但

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Ⅰ重要名詞解釋

純獲法律上利益，或依其年齡及身分、日常生活所必 需者，不在此限： ＊一、為獨資、合夥營業或為法人之負責人。 ＊二、為消費借貸、消費寄託、保證、贈與或信託。 ＊三、為訴訟行為。 ＊四、為和解、調解、調處或簽訂仲裁契約。 ＊五、為不動產、船舶、航空器、汽車或其他重要財產 之處分、設定負擔、買賣、租賃或借貸。 ＊六、為遺產分割、遺贈、拋棄繼承權或其他相關權利。 ＊七、法院依前條聲請權人或輔助人之聲請，所指定之 其他行為。 Ⅱ第七十八條至第八十三條規定，於未依前項規定得輔 助人同意之情形，準用之。 Ⅲ第八十五條規定，於輔助人同意受輔助宣告之人為第 一項第一款行為時，準用之。 Ⅳ第一項所列應經同意之行為，無損害受輔助宣告之人 利益之虞，而輔助人仍不為同意時，受輔助宣告之人 得逕行聲請法院許可後為之。

第 16 條（能力拋棄之禁止） ＊權利能力及行為能力，不得拋棄。 第 17 條（自由拋棄之禁止及限制） Ⅰ自由不得拋棄。 Ⅱ自由之限制，以不背於公共秩序或善良風俗者為限。 第 18 條（人格權受侵害時之救濟） Ⅰ人格權受侵害時，得請求法院除去其侵害；有受侵害 之虞時，得請求防止之。 Ⅱ前項情形，以法律有特別規定者為限，得請求損害賠 償或慰撫金。