Study on the Compatibility, Confrontation and Reconciliation between Mortgage and Usufruct from the perspective of demonstrating things to the extent- Centered on Civil Code Article 866 and Article 877 paragraph 2
Date Issued
2008
Date
2008
Author(s)
Tsai, Tsung-Ju
Abstract
How to demonstrate things to their extent is the theme of this thesis. From this point of view, this thesis centers on the discussion about whether that could Taiwan Civil Code article 866 and article 877 paragraph 2 offer the proper circumstances for mortgagees and the third parties of usufruct to demonstrate the mortgaged property to its extent. efore probing into the main question above, there is one concept we should know first: The goal of demonstrating things to their extent is built on sufficient protection for the rights of mortgagee and the person of usufruct, because, without this kind of protection as the inducement, it is hard for parties to try their best to use the mortgaged property. n terms of the main question with the basis of the previous understanding, it can be analyzed in two different aspects.he first part is from the dimension of time. In this part (chapter two and three of this thesis), the discourse rivets on the evolvement of the regulation which sets forth to appease the confrontation between mortgage and usufruct, the reasons why the regulation changed and the ideas that made it change.he second part is from the dimension of the jurisprudence. In this part (chapter four and five of this thesis), what Civil Code article 866 and 877 paragraph 2 weighs in the jurisprudence would be evaluated. With the discussion of the relationships between this regulation and other methods which as well have the capability to solve the confrontation between mortgage and usufruct, a combination, if there is one, which might be beneficial to the present system, would be considered whether an adequate potency to protect rights exists or not. Besides, the inspection of the constitutionality of the regulations is undoubtedly necessary in the field of jurisprudence.inally, besides of the disadvantage that the confrontation-solving system is built on the premise that mortgage has the priority to usufruct because the latter was legislated relatively late, other regulations are unable to offer sufficient protection for the usufruct based on the discussion above. Therefore, it is genuinely suggested that the Civil Code article 866 and 877 paragraph 2 should be amended to demonstrate the mortgaged property to its extent and the writer’s version of amendment would be stated in the last chapter.
Subjects
Confrontation between mortgage and usufruct
Remove rights
The buildings sold by auction together with the land
Principle of proportionality
Type
thesis
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