动产多重买卖标的物所有权的归属
发布时间：2019-06-22 18:39
【摘要】：多重买卖现象十分常见,出卖人受利益驱动,就同一标的物与数个买受人签订买卖合同。但是,标的物只有一个,出卖人无法就每个买卖合同履行交付标的物的义务。那么,出卖人应当将标的物交付给谁,标的物所有权的归属确定标准为何?在多重买卖中,这是必须要解决的问题。法释(2012)8号1第9、10条规定了普通动产和特殊动产多重买卖的履行顺序,两个法条均认同先行受领交付的买受人为最优先取得标的物所有权的人。均未受领交付的,对于买卖合同的履行顺序,普通动产采纳了“先行支付价款说”和“合同成立在先说”,特殊动产则采纳了“登记优先说”和“合同成立在先说”。司法解释第10条还明确规定了在特殊动产物权变动中交付效力优先于登记。司法解释起草者认为解释严格承袭了动产物权变动的规定,有利于提高司法效率,维护诚实信用、规制出卖人的失信行为。但是该司法解释一出,学界争议不断,且质疑者为大多数。首先,司法解释规定违反债权平等原则。其次,特殊动产物权变动交付效力优先于登记,有违背登记对抗主义的嫌疑,在现实中也会冲击特殊动产的登记制度,导致不公平,造成理论与实际的混乱。最后,动产多重买卖中还存在一些司法解释没有解决的问题。本文就是旨在研究这些问题,来明确应当如何确定动产多重买卖标的物所有权的归属。本文通过研究动产多重买卖合同履行顺序、后买受人主观状态对标的物所有权归属的影响、特殊动产交付与登记的冲突等问题,来明确动产多重买卖中标的物所有权归属的确定标准。正文包括四部分,导言和三章主体内容。导言主要是提出问题、文献综述、研究价值和意义等问题,文章主体为三章的内容。本文的第一章是对动产多重买卖相关问题的概述。首先,界定动产、普通动产和特殊动产的概念。动产就是除土地和土地附着物等被称为不动产以外的物,范围难以枚举;普通动产是指所有除了特殊动产以外的动产;特殊动产在我国主要指的是船舶、航空器和机动车。其次,分析了何为多重买卖。多重买卖是指出卖人就同一标的物订立多个买卖合同,分别出卖给数个买受人的行为。出卖人将标的物交付给先买受人,又就同一标的物与后买受人签订买卖合同,这种情况属于出卖他人之物,但也在本文的讨论范围之内。再次,对多重买卖的产生原因进行了分析,多重买卖现象是出卖人受利益或其他因素驱动产生的,在市场经济条件下不可避免,债权和物权的相对独立性又为其提供了法律土壤。最后,对多重买卖现象进行了法律评价。根据民法意思自治原则,出卖人有权在不违反强行法规定的前提下,与多个买受人订立买卖合同。法律对此不应做过多干涉和制裁,法律规制的应当是出卖人的违约行为。多重买卖中的后买受人即使知悉前买卖合同的存在,在法律上亦有正当地位。本文第二章分析了普通动产多重买卖标的物所有权的归属。首先,分析司法解释存在的问题。《买卖合同司法解释》第9条规定了普通动产多重买卖合同的履行顺序,采纳了“先行支付价款说”和“合同成立在先说”。司法解释规定违反了债权平等原则,没有合理依据地限制了出卖人的所有权,还不能真正规制出卖人的失信行为。规制出卖人的失信行为在现行的民法理论体系内就能得到解决,采用这样违反法律基本理论的标准在利益平衡上殊为不妥。其次,探讨普通动产多重买卖合同履行顺序的确定。对于多重买卖合同履行顺序问题有很多不同学说,主要有出卖人自主决定说、先行支付价款说、合同成立在先说、买受人先请求说和竞价购买及变价受偿说等。司法解释采纳了先行支付价款说和合同成立在先说,认为由于出卖人违背了诚信原则,故应当剥夺其自主选择的权利。而学界多对此观点进行批判,认为应当回归到出卖人自主决定说。本文通过分析和对比,认为即使多重买卖纠纷进入到诉讼或仲裁阶段,也应当赋予出卖人自主决定的权利,由出卖人自主决定向谁履行交付标的物的义务。如果出卖人不行使或不能行使该权利的,则应承担违约责任。最后,分析后买受人主观状态对标的物所有权归属的影响。后买受人的主观状态可以分为善意、恶意和单纯知情。对其他两者应无争议,但是对介于二者之间的单纯知情能否对标的物所有权取得产生影响,有一定争议。有的学者认为如果后买受人知悉前买卖合同存在,则会与出卖人构成默示的恶意串通,导致合同无效。本文不赞同这种观点,在单纯知情情况下,出卖人基于自己的所有权出卖标的物不是非法行为,没有损害先买受人债权的故意,不属于恶意串通,不会导致合同无效。由于债权的相对性,只能对合同当事人产生约束力,所以后买受人的单纯知情也不会使得先买卖合同产生对抗力。本文第三章研究了特殊动产多重买卖标的物所有权的归属。首先,分析司法解释存在的问题。司法解释违反了债权平等原则,不具有正当性;其在普通动产多重买卖确定合同履行顺序时采纳了先行支付价款说,在特殊动产领域又抛弃了该说,显得逻辑不贯通、处理规则相当随意;规定的交付效力优先于登记的规则违背了登记对抗主义的立法本意,冲击了特殊动产的登记制度,会导致不公平。其次,分析了我国现行特殊动产物权变动规则。我国特殊动产物权变动交付生效,登记仅为对抗要件。买受人受领交付,但未办理登记的,其取得标的物所有权;买受人未受领交付,但办理登记的,不取得标的物所有权。最后,分析在特殊动产物权变动中登记与交付冲突时何者效力应当优先。登记对抗主义在我国债权形式主义模式下水土不服,各种学说均无法自圆其说。本文建议引进物权合意概念,在当事人达成物权转让合意时,发生物权变动效力。这种物权合意在所有权转让方面表现为交付、登记或明确约定。
[Abstract]:The multi-transaction phenomenon is very common, and the seller is driven by the interests, and the same subject matter is signed with several buyers to sign the sales contract. However, the subject matter is only one, and the seller cannot fulfill the obligation to deliver the subject matter in respect of each sales contract. So, why should the seller deliver the subject matter to which the ownership of the subject matter is determined? In multiple transactions, this is a problem that must be addressed. Article 9 and 10 of the release (2012) No.8 provide for the order of the performance of the multi-sale of ordinary and special movable property, both of which agree with the buyer who is the first to receive the title of the subject. The "to pay the price first" and the "The contract was set up first." are adopted for the normal movable property, and the "registration priority" and the "The contract was set up first." are adopted for the special movable property. Article 10 of the judicial interpretation also specifies that the delivery effect in the change of the real right of a special movable property takes precedence over the registration. The drafters of the judicial interpretation believe that the interpretation of the change of the property right of the movable property is strictly carried out, which is beneficial to the improvement of the judicial efficiency, the maintenance of good faith and the regulation of the failure of the seller. The judicial interpretation, however, is in dispute, and the challenge is the majority. First, the judicial interpretation provides for the violation of the principle of equality of claims. Second, the effect of the change of the real right of the special movable property takes precedence over the registration, which is contrary to the suspicion of the registration of the confrontation, and in reality it will also impact the registration system of the special movable property, resulting in the inequity, which leads to the confusion of the theory and the practice. Finally, there are some problems that the judicial interpretation has not solved in the multi-transaction of the movable property. The purpose of this paper is to study these problems to determine how to determine the ownership of the ownership of the subject matter. In this paper, by studying the implementation order of the multiple sales contract of the movable property, the influence of the subjective state of the buyer on the ownership of the subject matter, the conflict between the delivery of the special movable property and the registration, the determination standard of the ownership of the ownership of the subject matter in the multi-transaction of the movable property shall be defined. The text includes four parts, the introduction and the main contents of the three chapters. The introduction is mainly to raise the questions, the literature review, the research value and the meaning, etc., the main body of the article is the content of the three chapters. The first chapter of this paper is an overview of the related problems of the multiple purchase and sale of movables. First, the concept of movable property, common movable property and special movable property is defined. The movable property is a property other than the real property, such as land and land attachments, which is difficult to enumerate; the ordinary movable property refers to all the movable property other than the special movable property; the special movable property refers to the ship, the aircraft and the motor vehicle mainly in China. Secondly, how to buy and sell is analyzed. The multiple purchase and sale refers to the fact that the seller has entered into a plurality of sales contracts on the same subject matter and sold them to several buyers, respectively. The seller delivers the subject matter to the first buyer, and then the same subject matter and the post-buyer enter into a sales contract, which belongs to the property of the seller, but is also within the scope of the discussion herein. Once again, the cause of the multiple purchase and sale is analyzed, and the multi-sale phenomenon is driven by the interests of the seller or other factors, and the relative independence of the creditor's right and the real right is inevitable under the condition of the market economy, and the legal soil is also provided. Finally, the legal evaluation of the multi-transaction phenomenon is carried out. According to the principle of self-government of civil law, the seller has the right to enter into a sales contract with a plurality of buyers without violating the provisions of the jus cogens. The law should not do many interference and sanction, and the legal regulation should be the seller's default behavior. The post-buyer in the multiple trade also has the legal status in the law, even if it knows the existence of the pre-sales contract. In the second chapter, the author analyses the ownership of the ownership of the subject matter of the common movables. First, the problems existing in the judicial interpretation are analyzed. The judicial interpretation of the sales and sales contract> Article 9 sets out the order of the performance of the multi-contract of the ordinary movable property, and adopts the "to pay the price first" and the "The contract was set up first.". The interpretation of the judicial interpretation violates the principle of the equality of the creditor's rights, and has no reasonable basis to limit the ownership of the seller, and can not really regulate the failure of the seller. It is not appropriate to regulate the breach of the law of the seller in the current civil law theory system, and the standard of the violation of the basic theory of the law is not appropriate in the interest balance. Secondly, the paper discusses the determination of the performance order of the multi-contract of common movables. There are many different theories about the order problem of the multi-contract sales contract, mainly including the seller's own decision to say, the first to pay the price, the contract is set up first, the buyer first requests to say and the bid to buy and the price of the price to be paid to say, etc. The judicial interpretation adopted the first to pay the price and the contract was set up in the first to say, because the seller violated the principle of good faith, it should be deprived of the right of the independent choice. The academic circle has criticized the view, and it is suggested that it should be returned to the seller's self-determination. In this paper, by analyzing and comparing, it is considered that the seller's right to self-determination should be given to the seller, even if the multi-sale dispute is in the litigation or arbitration stage, and the seller's self-determination is the duty of the seller to carry out the delivery of the subject matter. If the seller does not exercise or is unable to exercise the right, it shall be liable for breach of contract. Finally, the influence of the buyer's subjective state on the ownership of the subject matter is analyzed. The subjective state of the post-buyer can be divided into good-meaning, malicious and simple-informed. There should be no dispute over the other, but whether the simple and informed consent between the two should have an impact on the ownership of the subject matter, there is a certain dispute. Some scholars believe that if the latter is aware of the existence of the pre-sales contract, it will form an implied and malicious collusion with the seller, resulting in an ineffectiveness of the contract. This paper does not agree with the view that, in the case of simple and informed consent, the seller's own ownership of the subject matter is not an illegal act, and the intent of the first buyer's creditor's right is not damaged, and it does not belong to the malicious collusion, and will not cause the contract to be invalid. Because of the relativity of the creditor's rights, the contract parties can only be binding, so the simple and informed consent of the latter will not make the first sales contract produce the antagonistic force. The third chapter of this paper studies the ownership of the ownership of the subject matter of the special movable property. First, the problems existing in the judicial interpretation are analyzed. The judicial interpretation is in violation of the principle of the equality of the creditor's rights, and it is not justified; it adopts the first payment price in order to determine the performance of the contract for the multiple purchase and sale of the common movables, and then, in the area of the special movable property, it appears that the logic is not through, and the processing rules are quite arbitrary; The priority of the given delivery effect to the registration of the rules is contrary to the legislative intent of the registration of the counter-terrorism, and the impact of the registration system of a particular movable property can lead to an inequity. Secondly, the rule of the change of the real property right of the special movable property in our country is analyzed. The change of the real right of movable property in our country comes into effect, and the registration is only a countermeasure. If the Buyer is subject to the delivery, but the registration is not handled, it acquires the ownership of the subject matter; the Buyer is not subject to the delivery, but the registration is handled, and the ownership of the subject matter shall not be obtained. Finally, the analysis of the effect of the registration and delivery of the conflict in the change of the real right of the movable movables should take precedence. In our country's creditor's right of credit formalism, the registration of the antagonism is not satisfied, and the various theories can't be said from the circle. In this paper, it is suggested that the concept of the right of real right should be introduced, and the effect of the change of the real right may occur when the parties reach the agreement on the transfer of This property right is desirable to be delivered, registered or otherwise agreed upon in respect of the transfer of title.
【学位授予单位】：华东政法大学
【学位级别】：硕士
【学位授予年份】：2015
【分类号】：D923.2
本文编号：2504857
[Abstract]:The multi-transaction phenomenon is very common, and the seller is driven by the interests, and the same subject matter is signed with several buyers to sign the sales contract. However, the subject matter is only one, and the seller cannot fulfill the obligation to deliver the subject matter in respect of each sales contract. So, why should the seller deliver the subject matter to which the ownership of the subject matter is determined? In multiple transactions, this is a problem that must be addressed. Article 9 and 10 of the release (2012) No.8 provide for the order of the performance of the multi-sale of ordinary and special movable property, both of which agree with the buyer who is the first to receive the title of the subject. The "to pay the price first" and the "The contract was set up first." are adopted for the normal movable property, and the "registration priority" and the "The contract was set up first." are adopted for the special movable property. Article 10 of the judicial interpretation also specifies that the delivery effect in the change of the real right of a special movable property takes precedence over the registration. The drafters of the judicial interpretation believe that the interpretation of the change of the property right of the movable property is strictly carried out, which is beneficial to the improvement of the judicial efficiency, the maintenance of good faith and the regulation of the failure of the seller. The judicial interpretation, however, is in dispute, and the challenge is the majority. First, the judicial interpretation provides for the violation of the principle of equality of claims. Second, the effect of the change of the real right of the special movable property takes precedence over the registration, which is contrary to the suspicion of the registration of the confrontation, and in reality it will also impact the registration system of the special movable property, resulting in the inequity, which leads to the confusion of the theory and the practice. Finally, there are some problems that the judicial interpretation has not solved in the multi-transaction of the movable property. The purpose of this paper is to study these problems to determine how to determine the ownership of the ownership of the subject matter. In this paper, by studying the implementation order of the multiple sales contract of the movable property, the influence of the subjective state of the buyer on the ownership of the subject matter, the conflict between the delivery of the special movable property and the registration, the determination standard of the ownership of the ownership of the subject matter in the multi-transaction of the movable property shall be defined. The text includes four parts, the introduction and the main contents of the three chapters. The introduction is mainly to raise the questions, the literature review, the research value and the meaning, etc., the main body of the article is the content of the three chapters. The first chapter of this paper is an overview of the related problems of the multiple purchase and sale of movables. First, the concept of movable property, common movable property and special movable property is defined. The movable property is a property other than the real property, such as land and land attachments, which is difficult to enumerate; the ordinary movable property refers to all the movable property other than the special movable property; the special movable property refers to the ship, the aircraft and the motor vehicle mainly in China. Secondly, how to buy and sell is analyzed. The multiple purchase and sale refers to the fact that the seller has entered into a plurality of sales contracts on the same subject matter and sold them to several buyers, respectively. The seller delivers the subject matter to the first buyer, and then the same subject matter and the post-buyer enter into a sales contract, which belongs to the property of the seller, but is also within the scope of the discussion herein. Once again, the cause of the multiple purchase and sale is analyzed, and the multi-sale phenomenon is driven by the interests of the seller or other factors, and the relative independence of the creditor's right and the real right is inevitable under the condition of the market economy, and the legal soil is also provided. Finally, the legal evaluation of the multi-transaction phenomenon is carried out. According to the principle of self-government of civil law, the seller has the right to enter into a sales contract with a plurality of buyers without violating the provisions of the jus cogens. The law should not do many interference and sanction, and the legal regulation should be the seller's default behavior. The post-buyer in the multiple trade also has the legal status in the law, even if it knows the existence of the pre-sales contract. In the second chapter, the author analyses the ownership of the ownership of the subject matter of the common movables. First, the problems existing in the judicial interpretation are analyzed. The judicial interpretation of the sales and sales contract> Article 9 sets out the order of the performance of the multi-contract of the ordinary movable property, and adopts the "to pay the price first" and the "The contract was set up first.". The interpretation of the judicial interpretation violates the principle of the equality of the creditor's rights, and has no reasonable basis to limit the ownership of the seller, and can not really regulate the failure of the seller. It is not appropriate to regulate the breach of the law of the seller in the current civil law theory system, and the standard of the violation of the basic theory of the law is not appropriate in the interest balance. Secondly, the paper discusses the determination of the performance order of the multi-contract of common movables. There are many different theories about the order problem of the multi-contract sales contract, mainly including the seller's own decision to say, the first to pay the price, the contract is set up first, the buyer first requests to say and the bid to buy and the price of the price to be paid to say, etc. The judicial interpretation adopted the first to pay the price and the contract was set up in the first to say, because the seller violated the principle of good faith, it should be deprived of the right of the independent choice. The academic circle has criticized the view, and it is suggested that it should be returned to the seller's self-determination. In this paper, by analyzing and comparing, it is considered that the seller's right to self-determination should be given to the seller, even if the multi-sale dispute is in the litigation or arbitration stage, and the seller's self-determination is the duty of the seller to carry out the delivery of the subject matter. If the seller does not exercise or is unable to exercise the right, it shall be liable for breach of contract. Finally, the influence of the buyer's subjective state on the ownership of the subject matter is analyzed. The subjective state of the post-buyer can be divided into good-meaning, malicious and simple-informed. There should be no dispute over the other, but whether the simple and informed consent between the two should have an impact on the ownership of the subject matter, there is a certain dispute. Some scholars believe that if the latter is aware of the existence of the pre-sales contract, it will form an implied and malicious collusion with the seller, resulting in an ineffectiveness of the contract. This paper does not agree with the view that, in the case of simple and informed consent, the seller's own ownership of the subject matter is not an illegal act, and the intent of the first buyer's creditor's right is not damaged, and it does not belong to the malicious collusion, and will not cause the contract to be invalid. Because of the relativity of the creditor's rights, the contract parties can only be binding, so the simple and informed consent of the latter will not make the first sales contract produce the antagonistic force. The third chapter of this paper studies the ownership of the ownership of the subject matter of the special movable property. First, the problems existing in the judicial interpretation are analyzed. The judicial interpretation is in violation of the principle of the equality of the creditor's rights, and it is not justified; it adopts the first payment price in order to determine the performance of the contract for the multiple purchase and sale of the common movables, and then, in the area of the special movable property, it appears that the logic is not through, and the processing rules are quite arbitrary; The priority of the given delivery effect to the registration of the rules is contrary to the legislative intent of the registration of the counter-terrorism, and the impact of the registration system of a particular movable property can lead to an inequity. Secondly, the rule of the change of the real property right of the special movable property in our country is analyzed. The change of the real right of movable property in our country comes into effect, and the registration is only a countermeasure. If the Buyer is subject to the delivery, but the registration is not handled, it acquires the ownership of the subject matter; the Buyer is not subject to the delivery, but the registration is handled, and the ownership of the subject matter shall not be obtained. Finally, the analysis of the effect of the registration and delivery of the conflict in the change of the real right of the movable movables should take precedence. In our country's creditor's right of credit formalism, the registration of the antagonism is not satisfied, and the various theories can't be said from the circle. In this paper, it is suggested that the concept of the right of real right should be introduced, and the effect of the change of the real right may occur when the parties reach the agreement on the transfer of This property right is desirable to be delivered, registered or otherwise agreed upon in respect of the transfer of title.
【学位授予单位】：华东政法大学
【学位级别】：硕士
【学位授予年份】：2015
【分类号】：D923.2
【参考文献】
相关期刊论文 前2条
1 杨代雄;;准不动产的物权变动要件——《物权法》第24条及相关条款的解释与完善[J];法律科学(西北政法大学学报);2010年01期
2 张力;郑志峰;;普通动产一物二卖履行纠纷类型化思考——兼评《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》第九条[J];广西社会科学;2014年02期
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