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  論著名稱 編著譯者
  區分所有建物規約外之約定 陳重見

本文摘要
民法第799條之14項規定:「區分所有人間依規約所生的權利義務,繼受人應受拘束。其依其他約定所生之權利義務,特定繼受人對於約定之內容明知或可得而知者,亦同。」就約定得否對抗第三人,係區別「規約」及規約以外之「其他約定」,作不同之規定。後段所定係參照大法官釋字第349號解釋而來,比較法上甚為罕見,為我國特有之規定。本文從民法第799條之14項制定之沿革、約定之內容及約定之方式,來探究所謂「其他約定」之範圍。另「其他約定」得否溯及適用?所稱「可得而知」如何認定?本文均有詳細之解說。尤其,民法第826條之1亦屬分管契約對第三人效力之規範,其與民法第799條之14項後段之競合適用,即屬重要而值得探究之議題!
關鍵詞:規約、公寓大廈、分管契約、區分所有人會議決議、共有部分、專有部分、應有部分

Abstract

The fourth paragraph of Article 799-1 regulates the rights and duties that derive from the master deed between the owners shall be binding upon the owners’ successors. The rights and duties deriving from other agreements shall also be applied to the specific successor, who knows or has a reason to know the content of the agreements. A distinction between the master deed and other agreements is made by examining whether or not the agreement is to be effective against a third person. The latter paragraph is based on J.Y. interpretation No.349, which is very rare in the comparative law and is unique in our country. This paper researches the scope of the so-called "other agreements" from the evolution of the fourth paragraph of Article 799-1, by looking at the content of the agreements included and the manner of the agreements formulated. Whether or not "other agreements" could be retroactively applied? How to discern the situation of having a reason to know the content of the agreements? This article has in-depth elaboration on those topics. In particular, Article 826-1 is also a norm governing the effective regulation against the third person, on what occasion and which of these two articles should have the priority to be applied, and how they would compete against each other are important topics worth further exploring.