房屋二重买卖法律规制论

发布时间：2018-09-03 13:38

【摘要】：房屋是人们赖以生存和发展的基石。随着我国市场经济的发展,房地产市场改革日益加深,房产交易呈现爆炸式增长,特别是随着近年来房产价格的日益攀升,一房多卖现象也屡见不鲜,这不仅严重破坏了房地产市场正常的交易秩序,而且损害了广大消费者的利益。由于受大陆法系的影响,我国民事法律对物权和债权进行了区分,并形成了物权法和债权法两个体系,二者共同构成了财产法体系的支柱。房屋作为重要的不动产,其买卖必然涉及到财产的流转关系和所有权归属,因此,房屋买卖不单纯是合同法问题,也不单纯是物权法问题,需要两者共同来规范和约束。因房屋买卖要经历合同行为和物权行为两个行为,因此,要想完全杜绝二重买卖的出现几乎很难,问题的关键在于对已经出现的二重买卖如何进行法律规制,包括确定不同合同的效力、救济权利人、确定所有权的归属等一系列问题,处理好这些问题,不仅保护了合法权益,而且对房地产市场交易的失信行为也会起到遏制作用。对房屋二重买卖的规制手段主要通过物权法和债权法两个途径,债权法侧重于经济性补偿,物权法侧重于预防,而从我国的有关规定来看,并没有成形的物权法救济,主要以一种经济性的补偿来惩罚失信者,保障权利人利益。我国《物权法》的施行,虽然提出了一些带有物权性质的制度,比如预告登记制度,来治理二重买卖,但很多地区并没很好的执行,甚至有些地方的行政部门不受理此项业务；由于相关司法解释并未出台,法院在处理房屋二重买卖时适用法律也不统一,同案不同判问题突出等等,这都影响了对房屋二重买卖的规制效果。对于完善规制措施,应当借鉴国外的成功经验,开辟物权救济途径,探索赋予房屋二重买卖特定情况下以物权性,加大对权利人的救济力度,从根本上解决实践中遇到的问题。
[Abstract]:Housing is the cornerstone of people's survival and development. With the development of market economy in our country, the real estate market reform is deepening day by day, the real estate transaction presents the explosive growth, especially with the real estate price rising day by day in recent years, the phenomenon of one house selling more often also is common. This not only seriously damaged the real estate market normal trading order, but also damaged the interests of consumers. Because of the influence of the civil law system, the civil law of our country distinguishes the real right from the creditor's right, and forms two systems of the property law and the creditor's right law, which together constitute the pillar of the property law system. As an important real estate, the sale and purchase of house must involve the circulation relation and ownership of property. Therefore, the purchase and sale of house is not only a question of contract law, nor is it simply a matter of property law, which needs to be regulated and restricted by both. Because the purchase and sale of houses have to go through two acts: contract act and real right act, it is almost difficult to completely eliminate the appearance of double sale. The key problem lies in how to regulate the double sale that has already appeared. Including the determination of the effectiveness of different contracts, relief to the obligee, determine the ownership of a series of issues, deal with these problems, not only to protect the legitimate rights and interests, but also to the real estate market transactions will play a deterrent role in the act of discredit. The regulation means of dual purchase and sale of houses are mainly through the two ways of property law and creditor's right law, the creditor's right law emphasizes on economic compensation, the real right law emphasizes on prevention, but according to the relevant regulations of our country, there is no formative remedy of property law. Mainly to a kind of economic compensation to punish the breach of faith, to protect the interests of the obligee. The implementation of the Real right Law in China, although it has put forward some systems with the property right, such as the notice registration system, to govern the dual trading, but many areas have not been carried out well, and even some local administrative departments do not accept this business; Because the related judicial explanation has not been issued, the court also applies the law not to unify when dealing with the house double sale, the same case different judgment question prominent and so on, all this has affected to the housing dual sale regulation effect. In order to perfect the regulation measures, we should draw lessons from the successful experience of foreign countries, open up the way of real right relief, explore the nature of property right under the special circumstances of double purchase and sale of houses, increase the relief to the obligee, and solve the problems in practice fundamentally.
【学位授予单位】：山东大学
【学位级别】：硕士
【学位授予年份】：2012
【分类号】：D923

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