善意取得合同效力的立法解析与逻辑证成
发布时间：2018-09-07 19:21
【摘要】：善意取得合同效力的认定是解决善意取得在适用《物权法》第106条与《合同法》第51条时所面临各种可能冲突与相应理论困惑的逻辑前提。论文通过证成无权处分行为不影响合同效力得出善意取得合同为有效,并通过设定善意取得亦应遵循《物权法》中的一般物权变动模式(债权形式主义)而得出其所依据的合同也应为有效。论文还证成仅依善意取得合同的有效并不能保证善意第三人取得权利的绝对性,仍需要公示公信力实现善意取得物权的对世性,从而能够对抗原权利人的原物返还请求权。善意取得应遵守一般物权变动模式且善意取得合同有效的结论表明其性质应为继受取得。善意取得合同有效认定的多种实践优势表明,为了贯彻《物权法》与《合同法》在法律适用上的统一以及在未来立法中融入先进的法律理念,最好在《物权法》中把善意取得合同明确为有效并摒弃《合同法》中无权处分合同效力待定之规定。
[Abstract]:The determination of the validity of bona fide acquisition of contract is the logical premise to solve the various possible conflicts and theoretical puzzles faced by bona fide acquisition in the application of Article 106 of Real Law and Article 51 of contract Law. By proving that unauthorized disposition does not affect the validity of the contract, the paper concludes that the acquisition of the contract in good faith is effective. And by establishing that the acquisition in good faith should also follow the general mode of real right change (creditor's right formalism), the contract on which it is based should also be valid. The paper also proves that the validity of obtaining a contract only in good faith does not guarantee the absoluteness of the acquisition of rights by a bona fide third party, and it still needs public credibility to realize the universal nature of bona fide acquisition of real right, so as to be able to return the right of claim to the original object of the antigenic right holder. The conclusion that bona fide acquisition should abide by the general mode of real right change and that the bona fide acquisition contract is valid indicates that the nature of bona fide acquisition should be followed by acquisition. The multiple practical advantages of obtaining contracts in good faith show that in order to implement the unity of the application of the law between the Real right Law and the contract Law, and to incorporate advanced legal concepts into the future legislation, It is better to make the bona fide acquisition of contract valid in the Law of Real Rights and to abandon the provisions of the contract Law which have no right to dispose of the contract to be determined.
【作者单位】： 宁波大学;吉林大学法学院;中国人民大学法学院博士后流动站;
【分类号】：D923.6
[Abstract]:The determination of the validity of bona fide acquisition of contract is the logical premise to solve the various possible conflicts and theoretical puzzles faced by bona fide acquisition in the application of Article 106 of Real Law and Article 51 of contract Law. By proving that unauthorized disposition does not affect the validity of the contract, the paper concludes that the acquisition of the contract in good faith is effective. And by establishing that the acquisition in good faith should also follow the general mode of real right change (creditor's right formalism), the contract on which it is based should also be valid. The paper also proves that the validity of obtaining a contract only in good faith does not guarantee the absoluteness of the acquisition of rights by a bona fide third party, and it still needs public credibility to realize the universal nature of bona fide acquisition of real right, so as to be able to return the right of claim to the original object of the antigenic right holder. The conclusion that bona fide acquisition should abide by the general mode of real right change and that the bona fide acquisition contract is valid indicates that the nature of bona fide acquisition should be followed by acquisition. The multiple practical advantages of obtaining contracts in good faith show that in order to implement the unity of the application of the law between the Real right Law and the contract Law, and to incorporate advanced legal concepts into the future legislation, It is better to make the bona fide acquisition of contract valid in the Law of Real Rights and to abandon the provisions of the contract Law which have no right to dispose of the contract to be determined.
【作者单位】： 宁波大学;吉林大学法学院;中国人民大学法学院博士后流动站;
【分类号】：D923.6
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