擅自处分共有物之合同效力问题研究

发布时间：2019-05-27 12:42

【摘要】：随着房价的不断攀升,二手房买卖已经成为社会中非常普遍的交易现象。而伴随着相关交易量的激增,夫妻一方私卖共有房屋的案例屡见不鲜。然而对于擅自处分共有物的合同效力如何,我国不同的法律条文间却产生了明显的冲突,这种法条间的冲突直接导致了实务司法中五花八门的判决结果一---有认为其合同无效的,有认为其效力待定的,只有少数判决认为其合同有效。为了解决司法实务中的这一困点,合理的保护合同当事人及财产权利人的切身利益,作者将对擅自处分共有物的合同效力这一问题展开探析。文章中对处分、共有等概念进行了细致的梳理,对合同效力的价值进行了客观的分析;对司法实务中的相关案例进行了集合,从而对比分析不同案例争议的原因所在一法条逻辑不清、法律位阶不同、概念区分不明等等;针对这些原因,作者进行了逻辑梳理、价值对比和比较法研究,并在最后总结说明了对此问题的解决办法,即立法模式上引入物权行为有因化理论,在司法中完善对《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》(下称《买卖合同解释》)相关法律规定的适用。本文分为导言、第一章、第二章、第三章和结语,共计五个部分。导言部分由一个案例引出本文所要探析的问题------擅自处分共有物的合同效力到底如何,为何一线法院判决此类案例的结果五花八门、莫衷一是。为何不同法条之间的规定出现了如此大的悬殊,应该如何化解这个矛盾的局面。第一章对擅自处分共有物的之合同效力所涉及到的基本概念进行梳理。探析了共有的形式:按份共有、共同共有及非典型共有,对与共有相类似的概念进行区分;探析了合同的成立与生效的联系和区别从而更好的理解二者的关系,并从正义、效率、自由三个维度对合同效力的价值深度理解;探析了擅自处分共有物与无权处分的关系及此类情形下合同的效力。第二章引入了司法实务中的关于擅自处分共有物合同效力纠纷的相关案例,对案例之间的判决争议进行了深入的分析并得出其症结所在------法条逻辑的悖论、效力性强制规范与管理性强制规范的混淆,并对该症结进行了理论溯源对不同的物权变动模式进行了细致的分析,比较了判例法系国家和国际示范法对此类问题的规定。得出初步结论,基于法律体系协调的要求、基于交易效率的要求、基于交易安全的要求,擅自处分共有物的合同应为有效。第三章对如何完善擅自处分共有物之合同效力提出了建议,在立法上引入物权行为有因化的物权变动模式并分析了引入该模式的可行性,在司法上要加强各级法院对《买卖合同解释》第3条的相关理解和适用同时注意区分效力性强制规范和管理性强制规范。结语部分对本文进行了最后的简单总结,限于能力和篇幅,本文对擅自处分共有物之合同效力问题局限在了实务中较为常见的买卖交易,而对于抵押、质押、留置的担保物权效力以及赠与等处分行为未能展开更多的探析,希望在日后的学习生活中对该问题能够进行更加全面而细致的论述。
[Abstract]:With the rising of house prices, the sale of second-hand house has become a very common phenomenon in the society. With the proliferation of related trading volume, the case of the couple's private sales of the common house is common. However, with regard to the validity of the contract for the unauthorized disposal of the common objects, there is a clear conflict between the different legal provisions in our country, and the conflict between the legal provisions directly leads to a wide variety of judgment results in the substantive justice--with the view that the contract is invalid, and it is considered that the effect is to be determined. Only a few of them considered that their contracts were valid. In order to solve this difficulty in the judicial practice, it is reasonable to protect the personal interests of the parties and property right of the contract. The article makes a detailed analysis of the concept of disposition and consensus, and makes an objective analysis of the value of the effectiveness of the contract, and sets up the relevant cases in the judicial practice, so as to compare and analyze the reasons of the different case disputes, and the legal order is different. In view of these reasons, the author has studied the logic, value contrast and comparative law, and finally concluded the solution to this problem, that is, the introduction of the property right in the legislative mode is the result of the theory of law, In the administration of justice, the application of the relevant laws of the People's Court of the People's Court of the People's Court on the application of the applicable law of the dispute over the trial and sales contract is improved (hereinafter referred to as the "interpretation of the sales contract"). This article is divided into the introduction, the first chapter, the second chapter, the third chapter and the epilogue, a total of five parts. The introduction is from one case to the question to be analyzed in this paper--how to dispose of the contract effectiveness of a common object without authorization, and why the first-line court decides that the outcome of such cases is different and the compromise is. What is the difference between the provisions of the different methods is how to resolve this contradiction. The first chapter is to sort out the basic concepts involved in the contract effectiveness of the unauthorized disposal of the shares. In this paper, the common forms of common, common and non-typical are analyzed, the concept of similar to that of common is divided, the relation and difference between the establishment and the effective of the contract are analyzed, the relationship between the two is better understood, and the justice and the efficiency are obtained. The three dimensions of freedom have a deep understanding of the value of the effectiveness of the contract, and probes into the relationship between the unauthorized disposal of the shares and the right to dispose of the contract and the effect of the contract under such circumstances. In the second chapter, the author introduced the relevant cases of the dispute of the contract effectiveness of the common object without authorization in the judicial practice, and made an in-depth analysis of the dispute between the cases and found its crux--the paradox of the legal bar logic, the force of validity and the confusion of the mandatory specification of the administrative force, In this paper, the author makes a detailed analysis of the change pattern of the real right, and compares the case-based national and international model law to the problem. The preliminary conclusions are drawn, and based on the requirements of the coordination of the legal system, the contract of disposing the shares without authorization shall be valid based on the requirements of the transaction efficiency and the requirements of the transaction security. In the third chapter, the author makes a suggestion on how to perfect the contract effect of the unauthorized disposal of the object, introduce the change pattern of the real right in the legislation, and analyze the feasibility of the introduction of the model. In the administration of justice, it is necessary to strengthen the relevant understanding and application of the courts at all levels to the interpretation of the Sales and Sales Contract> Article 3, and to pay attention to the distinction between the mandatory and the administrative rules. The conclusion of the concluding remarks is the last simple summary, which is limited to the ability and length, and the limitation of the contract validity of the unauthorized disposal of the common objects in the practice is the more common business transaction, and for the mortgage and the pledge, The effect of the remaining security right and the disposition of the grant have not expanded more and more, and it is hoped that the problem can be more fully and more detailed in the future study life.
【学位授予单位】：中央民族大学
【学位级别】：硕士
【学位授予年份】：2017
【分类号】：D923.6

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