浅析我国的无权处分制度

发布时间：2018-10-17 13:56

【摘要】：我国《合同法》第51条是关于无权处分制度的规定,即：“无权处分的人处分他人财产,经权利人追认或者无权处分权的人订立合同后取得处分权的,该合同有效。”但如何理解该条款的含义,在理论界一直存在着很大的分歧,这种纷争也对实务界产生了较大的影响。基于对德国民法区分债权行为与物权行为以及物权行为独立性、无因性理论的不同认知度,理论界就无权处分人签订合同的效力存在有效说、无效说和效力待定说三种观点。《物权法》颁布前,一般认为在我国传统民法理论中是不承认物权行为理论的,因此,反对但囿于物权行为理论来解释无权处分合同的效力问题一直未获成功,但是,2007年颁布实施的《物权法》第15条确立了物权变动的原因与结果相区分原则,即采纳了物权行为理论,各种观点对《合同法》第51条的解释更是各抒己见,无法统一。更为复杂的是,2012年5月,最高人民法院颁布的《最高人民法院关于审理买卖合同纠纷案件适用法律问题的解释》第3条明确采纳了无权处分有效说的观点,即：“当事人一方以出卖人在缔约时对标的物没有所有权或者处分权为由主张合同无效的,人民法院不予支持。出卖人因未取得所有权或者处分权致使标的物所有权不能转移,买受人要求出卖人承担违约责任或者要求解除合同并主张损害赔偿的,人民法院应予支持。”此规定与《合同法》第51条规定的无权处分制度存在明显的冲突。此规定的颁布使在我国统一理解和适用无权处分制度更显必要与急迫。笔者认为,作为法律工作者,尊重与执行现行法律规定是对法律工作者最基本的素质要求。诚然《合同法》第51条存在不足之处,但是在立法机关尚未作出其他规定之前,法律工作者应当仅在我国现行法律体系框架内对其进行解释与适用,尤其是实务界更当如此。基于这种认识,本文将围绕我国现行《合同法》规定的无权处分制度,就无权处分人所签订的合同的效力问题,在分析比较当代国内和国外典型国家“无权处分”理论的基础上,解析各种无权处分观点的利弊,并最终肯定效力待定说。文中还将着重阐述在我国现行法律体系内,《合同法》第51条所规定的无权处分制度与善意取得制度如何衔接；在共有人未经其他共有人同意处分共有财产、抵押人未经抵押权人同意处分抵押物、出卖出租物等不同情形下,现行无权处分制度如何适用;无权处分制度与出卖人权利瑕疵担保责任、合同的无效与可撤销之间的关系与协调。尤为重要的是,2012年5月最高人民法院颁布的《最高人民法院关于审理买卖合同纠纷案件适用法律问题的解释》中涉及无权处分制度的规定是我国无权处分制度的新情况,它以有效说为理论基础所作出的规定必定对我国现行无权处分制度产生重大影响。本文将就新规定的理论基础、进步与不足,其怎样与现行无权处分制度协调等问题进行深入解析。
[Abstract]:Article 51 of the Law of the People's Republic of China is as follows: "Any person who is not entitled to dispose of another person's property, who has been recognized by the obligee or has no right to dispose of the property right after the contract has entered into a contract, shall be decentralized, and the contract shall be valid." But how to understand the meaning of this clause, there has been a lot of differences in the theory circle, which also has great influence on the practice circles. Based on the distinction between creditor's right behavior and real right behavior as well as the independence of real right behavior and the independence of real right behavior, the theory circle has no right to punish the validity of contract signing. Prior to the promulgation of the Real Right Law, it is generally considered that the theory of real right behavior is not recognized in our traditional civil law theory. Therefore, it is opposed to the theory of real right behavior to explain the validity of the right to dispose of the contract has not been successful. However, Article 15 of the Law of the People's Republic of China promulgated and implemented in 2007 has established the principle of distinguishing the cause and result of the change of real right, that is, adopting the theory of real right behavior, and various viewpoints have different opinions on the interpretation of the Contract Law> Article 51 and cannot be unified. More complex, in May 2012, the Supreme People's Court promulgated the Supreme People's Court's Interpretation of the Law on the Handling of Disputes over the Sale and Sales Contract, and Article 3 explicitly adopted the view that no right to dispose of it effectively, namely: "The people's court shall not support the party's people's court in case the seller has no ownership or disposition of the subject matter at the time of contracting. If the Seller fails to transfer the ownership of the subject matter due to the lack of ownership or disposition, the Buyer requires the Seller to assume the liability for breach of contract or require the termination of the contract and claim damages, the people's court shall support." This provision has a clear conflict with the right to dispose of the system under article 51 of the Contract Law. The promulgation of this regulation makes it more necessary and urgent to understand and apply the system more clearly in our country. In the author's opinion, as a legal worker, respect and enforcement of the current legal provisions is the most basic quality for legal workers It is true that there are shortcomings in the Contract Law and Article 51, but before other provisions have been made by the legislature, the legal worker should explain and apply only within the framework of the existing legal system in our country, especially when the substantive boundary is more In this way, based on this understanding, this paper will not have the right to dispose of the validity of the contract signed by the people around our country's current contract law, and analyze and compare the contemporary domestic and foreign texts. State "does not have the right to On the basis of the theory, it analyzes the advantages and disadvantages of the right to dispose of the opinions, and finally affirms the effectiveness. In the text, it will also focus on how to connect the right disposition system and the good faith acquisition system stipulated in the Contract Law> Article 51 in the current legal system in our country. If there are no other co-owners who agree to dispose of the common property, the mortgagor does not agree to dispose of the property without the consent of the mortgagee In different situations such as the goods, the sale of the lease, etc., the current right to dispose of the system applies; the right to dispose of the system and the seller's rights flaw guarantee liability, the relationship between the invalid and the cancerability of the contract is the same. In May 2012, the Supreme People's Court promulgated by the Supreme People's Court in May 2012, the Supreme People's Court's interpretation of the application of the law on the handling of disputes concerning sales and sales contracts, and the provisions concerning the right to dispose of the system are not the new ones in our country's authority to dispose of the system In fact, it is effective to say that the regulations made on the basis of theory must have great influence on China's current right to dispose of the system The effect of this article will be on the theoretical basis, progress and deficiency of the new regulation, how to coordinate with the existing authority to punish the system and so on deeply
【学位授予单位】：西南财经大学
【学位级别】：硕士
【学位授予年份】：2012
【分类号】：D923.6;D923.2

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