无权处分规则研究
发布时间：2018-08-14 14:21
【摘要】：无权处分规则一直是民法学界研究的重要规则之一。该规则涉及传统民法中众多基础理论，，包括法律行为的概念，物权行为、债权行为的区分，无权处分行为的效力等等。我国《物权法》制定之后学界对无权处分的诸多问题依然没有定论。同时，由于我国《合同法》、《物权法》借鉴了法国和德国的不同规定，导致了立法上对无权处分规则的规定较为模糊。2010年，最高人民法院下发了《关于审理买卖合同案件若干问题的解释（征求意见稿）》，其中对无权买卖他人之物合同的效力做出了新的规定，文章以此为契机，从学理上对无权处分规则进行更深一步的研究。 除引言和结语外，本文分为三章： 第一章“处分的基本理论”。本章主要对处分及处分行为的概念进行阐述。首先介绍传统民法中“处分行为”的理论渊源和意义，在此基础上厘清与处分行为相关的概念，同时分析处分行为与负担行为的区别及原因。最后，介绍处分权与无权处分的概念，为下文进一步展开论述做铺垫。 第二章“处分行为有无对无权处分的影响”。由于世界各国对处分行为理论态度并不相同，因此本部分以是否承认处分行为理论为标准，分别介绍了有处分行为的国家的无权处分规则和无处分行为国家的无权处分规则，试图探求物权变动模式的区别对无权处分规则的影响。同时，解析无权处分规则与善意取得制度、不当得利制度的联系。 第三章“我国无权处分规则的现状与重构”。首先，从我国《合同法》第51条规定的无权处分规则入手，分析现阶段我国学界对无权处分规则的不同理解。结合上文，阐述我国的无权处分规则的具体内容，包括我国无权处分行为的效力，催告行为的性质，追认行为的性质等。其次，通过对我国交易行为的“三个阶段和两个关系”的分析，论述处分权的缺乏对交易行为的具体影响，并以此为基础对我国的无权处分规则进行重构。同时，在本部分中还论述了我国的善意取得、不当得利制度，以期形成一个统一的，完整的理论和制度体系。
[Abstract]:The rule of unauthorized disposition has always been one of the important rules in the field of civil law. This rule involves many basic theories in the traditional civil law, including the concept of legal act, the act of real right, the distinction of the act of creditor's rights, the validity of the act of unauthorized disposition and so on. After the formulation of Real right Law, scholars still have no conclusion on the issue of unauthorized disposition. At the same time, because of the difference between France and Germany, the rules of unauthorized disposition are vague in legislation. In 2010, The Supreme people's Court issued an explanation (draft for opinions) on several issues concerning the trial of cases of sale and purchase contracts, which made new provisions on the effectiveness of contracts for the purchase and sale of things that did not have the right to buy and sell others. The article took this opportunity as an opportunity. From the theoretical point of view of the unauthorized disposition of the rules for a deeper study. In addition to the introduction and conclusion, this paper is divided into three chapters: the first chapter, the basic theory of punishment. This chapter mainly expounds the concept of punishment and punishment behavior. This paper first introduces the theoretical origin and significance of "punishment behavior" in the traditional civil law, and then clarifies the concepts related to the punishment act, and analyzes the difference and reason between the punishment behavior and the burden behavior at the same time. Finally, it introduces the concept of disposition right and unauthorized disposition, which paves the way for further discussion. Chapter two: the influence of disposition on unauthorized disposition. As different countries in the world have different attitudes to the theory of disposition behavior, this part introduces the unauthorized disposition rules of the countries with disciplinary acts and the unauthorized disposition rules with nowhere branches as the state's unauthorized disposition rules, according to the criterion of whether to recognize the disciplinary behavior theory or not. This paper tries to explore the influence of the mode of real right change on the rules of unauthorized disposition. At the same time, it analyzes the relationship between unauthorized disposition rules and bona fide acquisition system and unjust enrichment system. Chapter three: the present situation and Reconstruction of the rules of unauthorized disposition in China. First of all, starting with the rules of unauthorized disposition stipulated in Article 51 of contract Law of China, this paper analyzes the different understandings of the rules of unauthorized disposition in Chinese academic circles at the present stage. Combined with the above, this paper expounds the specific contents of the rules of unauthorized disposition in our country, including the effectiveness of the unauthorized disposition in our country, the nature of the act of impeachment, the nature of the act of ratification, and so on. Secondly, through the analysis of the "three stages and two relations" of the transaction behavior in China, the author discusses the concrete influence of the lack of disposition right on the transaction behavior, and on this basis reconstructs the rules of unauthorized disposition in our country. At the same time, this part also discusses the system of bona fide acquisition and unjust enrichment in order to form a unified and complete system of theory and system.
【学位授予单位】：华东政法大学
【学位级别】：硕士
【学位授予年份】：2012
【分类号】：D923
本文编号：2183135
[Abstract]:The rule of unauthorized disposition has always been one of the important rules in the field of civil law. This rule involves many basic theories in the traditional civil law, including the concept of legal act, the act of real right, the distinction of the act of creditor's rights, the validity of the act of unauthorized disposition and so on. After the formulation of Real right Law, scholars still have no conclusion on the issue of unauthorized disposition. At the same time, because of the difference between France and Germany, the rules of unauthorized disposition are vague in legislation. In 2010, The Supreme people's Court issued an explanation (draft for opinions) on several issues concerning the trial of cases of sale and purchase contracts, which made new provisions on the effectiveness of contracts for the purchase and sale of things that did not have the right to buy and sell others. The article took this opportunity as an opportunity. From the theoretical point of view of the unauthorized disposition of the rules for a deeper study. In addition to the introduction and conclusion, this paper is divided into three chapters: the first chapter, the basic theory of punishment. This chapter mainly expounds the concept of punishment and punishment behavior. This paper first introduces the theoretical origin and significance of "punishment behavior" in the traditional civil law, and then clarifies the concepts related to the punishment act, and analyzes the difference and reason between the punishment behavior and the burden behavior at the same time. Finally, it introduces the concept of disposition right and unauthorized disposition, which paves the way for further discussion. Chapter two: the influence of disposition on unauthorized disposition. As different countries in the world have different attitudes to the theory of disposition behavior, this part introduces the unauthorized disposition rules of the countries with disciplinary acts and the unauthorized disposition rules with nowhere branches as the state's unauthorized disposition rules, according to the criterion of whether to recognize the disciplinary behavior theory or not. This paper tries to explore the influence of the mode of real right change on the rules of unauthorized disposition. At the same time, it analyzes the relationship between unauthorized disposition rules and bona fide acquisition system and unjust enrichment system. Chapter three: the present situation and Reconstruction of the rules of unauthorized disposition in China. First of all, starting with the rules of unauthorized disposition stipulated in Article 51 of contract Law of China, this paper analyzes the different understandings of the rules of unauthorized disposition in Chinese academic circles at the present stage. Combined with the above, this paper expounds the specific contents of the rules of unauthorized disposition in our country, including the effectiveness of the unauthorized disposition in our country, the nature of the act of impeachment, the nature of the act of ratification, and so on. Secondly, through the analysis of the "three stages and two relations" of the transaction behavior in China, the author discusses the concrete influence of the lack of disposition right on the transaction behavior, and on this basis reconstructs the rules of unauthorized disposition in our country. At the same time, this part also discusses the system of bona fide acquisition and unjust enrichment in order to form a unified and complete system of theory and system.
【学位授予单位】：华东政法大学
【学位级别】：硕士
【学位授予年份】：2012
【分类号】：D923
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