所有权保留买方期待权保护研究

发布时间：2018-10-05 19:29

【摘要】：所有权保留买方期待权系一甚为复杂晦涩的权利,其体系之大,理论之深,引古今中外名家学者纷纷议之。本文由引言、正文、结论三部分组成。引言介绍了本文的选题背景、研究范围,以及提出并且分析、总结本文论述的焦点问题。正文共分四部分对所有权保留买方期待权保护进行研究。第一,所有权保留买方期待权的基本理论。其概念界定为买方除基于保留买卖合同而产生的债权性质的所有权移转请求以及支付价金义务以外的法律地位,即所有权保留买方受到法律特别保护的法律地位。期待权及既得权之区别,期待权与既得权是民法权利之纵轴分类,体系位于人身财产分类、支配请求形成抗辩权之上。既得权成立条件全然具备,确定性程度高,期待权系一种应受保障的"期待"。期待权具有一种"预备"之属性。与形成权之比较,二者取得权利方式不同。形成权明显具有单次耗损的属性,相同内容的形成权不可重复延续,而期待权是一个逐渐演变成完全权利的权利。所有权保留买方期待权的性质为兼具物权、债权属性的特殊权利。第二,注意所有权保留与相关合同制度的区别。与附条件买卖制度相比,所有权保留与附条件买卖并无本质不同,究其核心,均为买卖合同中买主先取得标的物占有,而所有权在价金清偿之前由卖方保留。所有权保留制度与附条件买卖制度基本一致,其适用范围具有极大的相似性。所有权保留与附条件买卖制度的特质也是极度相似。所有权保留和附条件买卖制度只因其"生长"环境之异,所属法系之异,因而名称不同,其本质并无明显不同。附条件买卖行为与所有权保留制度、附条件买卖制度完全不同。当所有权保留买卖合同发生纠纷时,若双方当事人未对合同之效力附条件,仅对标的物所有权转移附条件,适用《合同法》45条之规定,明显不妥,适用范围也大相径庭。第三,所有权保留买方期待权之保护的内容极为丰富。期待权已经明确系一种受法律保护具有独特法律地位之权利,并且具有独立的权利机能,如期待权得处分,得善意取得,在其之上设立担保权利等。另外,其当然具有可让与性。期待权让与与"削梨说"、"一物二卖"之区别也是期待权让与之重要部分。其与善意取得的关系本文主要将其分为三种情况研究,认为前两种的善意取得可以成立,但是期待权不存在的情况下,善意取得不能成立。在担保物权上,期待权之上可以增设抵押权,动产质权,以及留置权。最后,所有权保留买方期待权的保护问题应该从立法和司法上解决。立法上,合同法需要对所有权保留的设定加以明确,还应将期待权作为独立权利保护,其他立法上我国可以借鉴德国民法典、台湾民法附条件之法律行为的规定等。司法上,我国《买卖合同解释》中取回权应加以限制,而回赎权是所有权保留买方期待权保护之有利途径。结论部分对全文的主要观点进行了简单总结。
[Abstract]:The buyer's right of expectation is a complicated and obscure right whose system and theory are so deep that it has been discussed by famous scholars all over the world in ancient and modern times. This paper consists of three parts: introduction, text and conclusion. The introduction introduces the background, research scope, and analysis of the topic, summarizes the focus of this paper. The text is divided into four parts to study the protection of buyer's expectant right of retention-of-title. First, the basic theory of ownership retention buyer's right of expectation. Its concept is defined as the legal status of the buyer other than the claim transfer request and the obligation to pay the value arising from the reservation of the contract of sale and purchase, that is, the legal status of the buyer of the retention of title which is specially protected by law. The difference between expectation right and vested right, expectation right and vested right are the vertical classification of civil law rights, the system is located in the classification of personal property and the right of defense. The establishment condition of the vested right is complete, the degree of certainty is high, and the right of expectation is a kind of "expectation" which should be protected. The right of expectation has the attribute of "preparation". Compared with the right of formation, they have different ways of obtaining rights. The right of formation obviously has the attribute of single wear and tear, the right of formation of the same content can not be repeated, and the right of expectation is a right that gradually evolves into a complete right. The nature of the buyer's expectant right of retention of title is a special right with the property of both real right and creditor's right. Second, pay attention to the difference between the retention of ownership and the relevant contract system. Compared with the conditional trading system, there is no essential difference between the retention of ownership and the conditional sale, the core of which is that the buyer acquires possession of the subject matter in the contract of sale, while the ownership is reserved by the seller before the payment of the price. Retention of title system is basically consistent with conditional trading system, and its scope of application has great similarity. The characteristics of retention of title and conditional trading are also extremely similar. The system of reservation of title and conditional purchase and sale is not obviously different in nature because of the difference of its "growing up" environment and the difference of its legal system. The act of conditional trading is completely different from the system of retention of title and conditional trading. When a dispute arises in the contract of retention of ownership, if the parties do not attach conditions to the validity of the contract, only the transfer of title to the subject matter is subject to conditions, the provisions of Article 45 of contract Law are obviously inappropriate, and the scope of application is also quite different. Thirdly, the content of the protection of the buyer's right of expectation is extremely rich. The right of expectation is a kind of right which is protected by law and has a unique legal status, and has independent function of right, such as the disposition of the right of expectation, the acquisition of the right in good faith, the establishment of the security right on the basis of it, and so on. In addition, it certainly has transferability. The difference between the transfer of expectation right and the theory of pear cutting is also an important part of the transfer of expectation right. The relationship between bona fide acquisition and bona fide acquisition is mainly divided into three kinds of case studies. The former two kinds of bona fide acquisition can be established, but in the absence of the right of expectation, bona fide acquisition cannot be established. On the security right, we can add mortgage, chattel pledge and lien over expectation right. Finally, the protection of buyer's right of expectation should be solved by legislation and judicature. In legislation, the contract law needs to define the reservation of ownership, and should protect the right of expectation as an independent right. In other legislation, we can learn from the German Civil Code and the stipulation of the conditional legal act in Taiwan civil law, and so on. Judicially, the right to take back should be restricted in the interpretation of contract of purchase and sale in our country, and the foreclosure is the advantageous way to protect the buyer's right of expectation. The conclusion part makes a brief summary of the main points of the paper.
【学位授予单位】：大连海事大学
【学位级别】：硕士
【学位授予年份】：2017
【分类号】：D923.6

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