论动产多重买卖中标的物所有权的归属

发布时间：2018-05-07 21:01

本文选题：动产多重买卖 + 登记对抗主义　；参考：《湘潭大学》2017年硕士论文

【摘要】：最高人民法院在确立多重买卖标的物的归属问题上出现了两个错误,一个是没有注意到正常买卖和多重买卖的区别,预设了在合同可以实际履行的情况下,标的物所有权必须归属于其中某一个买受人所有的思维定式,成为了违反债权平等原则的思想根源,极有可能导致差别对待不同的享有债权请求权的买受人。另一个是没有准确理解《物权法》第24条所规定的登记对抗主义的立法意图,虚化了登记的对抗效力,危及交易安全,挫伤了特殊动产买卖中鼓励买受人进行登记的立法意图的实现。从立法论的角度,应该依据如下规则来认定动产多重买卖中标的物的所有权:首先,应该认定动产多重买卖中各个合同的效力,次买受人明知出卖人已经就同一标的物签署买卖合同者,不再对次买受人的主观恶意状态进行细分,直接依据《合同法》第52条第2项的“恶意串通”认定该合同无效,即使次买受人只是“单纯知情”;标的物未交付的,排除其对于动产标的物所有权的债权请求权,已经交付的,其他买受人有权请求其将标的物返还。其次,在各个买卖合同均不存在效力瑕疵的情况下,如果动产标的物已经交付或者登记的,法官可直接认定动产标的物的所有权归属于受领交付或取得登记的买受人;原因在于,受领交付的买受人已经取得物权优于其他买受人的债权请求权,取得登记的买受人可以基于立法政策对于登记公示的保护来得到优先保护。再次,在特殊动产多重买卖中,出卖人分别将标的物交付和登记给不同的买受人的,由于登记可以消极对抗交付的效力,二者可以平等地对标的物主张所有权,此时,法官应该依据竞价购买及优先受偿规则来确定标的物所有权的归属。最后,在各个买受人均未受领交付或取得登记的情形,应该依据竞价购买及优先受偿规则来确定动产标的物所有权的归属,以免破坏债权平等原则,导致对不同的买受人不公正现象的出现。
[Abstract]:The Supreme people's Court has made two mistakes in establishing the attribution of the subject matter of multiple transactions. One is that it has not noticed the difference between normal trading and multiple buying and selling, presupposing that the contract can actually be performed. The ownership of the subject matter must be attributed to one of the buyer's thinking patterns, which has become the ideological root of violating the principle of equality of creditor's rights, which may lead to different treatment of different buyers who have the claim of creditor's rights. The other is the lack of an accurate understanding of the legislative intent of registration antagonism as stipulated in Article 24 of the Real right Law, thereby rendering the effectiveness of registration counterproductive and endangering the security of transactions. Discourages the realization of the legislative intention to encourage buyers to register in the sale of special movable property. From the legislative point of view, we should determine the ownership of the subject matter in the multiple sale of movable property according to the following rules: first, we should determine the validity of the various contracts in the multiple sale of movable property. The sub-buyer, knowing that the seller has signed a contract for the sale of the same subject matter, no longer subdivides the sub-buyer 's subjective malice, and directly determines that the contract is null and void in accordance with the "malicious collusion" in item 2 of Article 52 of the contract Law, Even if the sub-buyer is only "only informed"; if the subject matter is not delivered, excluding its claim for title to the subject matter of movable property, if it has already been delivered, the other buyer has the right to ask it to return the subject matter. Secondly, if the subject matter of movable property has been delivered or registered, the judge can directly determine that the ownership of the subject matter of movable property belongs to the buyer who receives the delivery or obtains the registration. The reason is that the buyer who receives the delivery has already obtained the claim right of the property right superior to the other buyers, and the buyer who obtains the registration can get the priority protection based on the protection of the legislation policy to the registration public notice. Thirdly, when the seller delivers the subject matter and registers it to different buyers, they can claim the ownership of the subject matter equally because of the negative effect of registration against the delivery. The judge shall determine the ownership of the subject matter according to the rules of competitive purchase and preferential payment. Finally, in cases where each buyer has not received delivery or has been registered, the ownership of the subject matter of movable property should be determined on the basis of the rules of competitive purchase and preferential payment, so as not to undermine the principle of equality of claims. It leads to the appearance of injustice to different buyers.
【学位授予单位】：湘潭大学
【学位级别】：硕士
【学位授予年份】：2017
【分类号】：D923.2

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