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  • Interpretation
  • No.139
  • Date
  • 1974/10/04
  • Issue
    • May an owner of immovable property create a mortgage on the property on which he has already created a right of dien to another person?
  • Holding
    •        The owner of an immovable property may, after the creation of a right of dien on his property, create a mortgage to another person on the same property to the extent that the dien is not affected. Our Interpretation Yuan-tze No. 192 is reaffirmed without the necessity of change.
  • Reasoning
    •        The right of dien is a right to use the immovable property of another person and to collect profits therefrom by paying a price and taking possession of the property. It differs from, but does not preclude, the creation of mortgage, which is a right over a thing created to secure the performance of a debt without having to transfer the possession of the property. The owner of an immovable property does not lose his title to the property by creating a right of dien thereon. Therefore, the Civil Code, in Book III, "Right Over Things", does not prohibit a property owner from creating a mortgage to another person on the same property insofar as the right of dien is not affected. Our Interpretation Yuan-tze No. 192 is reaffirmed without the necessity of change. 
      
    • *Translated by Raymond T. Chu.
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