法律文书导致物权变动研究
发布时间：2019-07-04 16:16
【摘要】：我国《物权法》第28条规定因人民法院、仲裁委员会的法律文书导致物权设立、变更、转让或者消灭的,自法律文书生效时发生效力,不以公示为生效要件。从解释论的视角来看,以目的性限缩解释的立场确定“法律文书”的范围符合现有法律规定。以民事诉讼形成之诉理论结合实体法有关形成权的规定界定“法律文书”的范围是一种可行的路径,据此可确定撤销合同、变更合同、分割共有物的判决书、裁决书可以导致物权变动。但形成之诉理论不是解决“法律文书”范围界定问题的唯一方法,否则会使“法律文书”的范围过于狭窄。以文书所体现的公权力来界定“法律文书”的范围是另一种可行的路径,因为法律文书直接导致物权变动的理论基础是公权力的介入。导致物权归属于国家或者集体的法律文书、调解书、法院作出的拍卖成交裁定书和以物抵债裁定书体现了国家公权力,因此能导致物权变动。调解书应该限定为在形成之诉中支持原告形成诉权的调解书,但原则上形成之诉不适宜以调解结案,故该种类型的调解书并不普遍存在。因法律文书取得的物权在外部效力上未经登记不得对抗善意第三人,适用善意取得制度,在再次进行处分前应该进行登记。
[Abstract]:Article 28 of the property Law of our country stipulates that if the real right is established, changed, transferred or eliminated as a result of the legal documents of the people's court and the arbitration commission, it shall have effect from the entry into force of the legal document and shall not take publicity as the effective requirement. From the perspective of hermeneutic theory, it is in accordance with the existing legal provisions to determine the scope of the legal instrument from the point of view of purposeful restrictive interpretation. It is a feasible way to define the scope of "legal document" by combining the theory of litigation formed in civil proceedings with the provisions of substantive law on the right of formation. According to this, the judgment of canceling the contract, changing the contract and dividing the common property can be determined, and the award can lead to the change of real right. However, the theory of litigation is not the only way to solve the problem of defining the scope of legal documents, otherwise it will make the scope of legal documents too narrow. It is another feasible way to define the scope of "legal document" by the public power embodied in the document, because the theoretical basis of the change of real right directly caused by the legal document is the intervention of public power. The legal documents, mediation documents, auction transaction orders and material payment orders made by the court reflect the public power of the state, so it can lead to the change of the real right. The mediation statement should be limited to the mediation statement which supports the plaintiff to form the right of action in the formed lawsuit, but in principle, the formed lawsuit is not suitable for the settlement of the case by mediation, so this type of mediation statement is not common. The real right acquired by the legal document shall not be registered against the bona fide third party without registration. The bona fide acquisition system shall be applied and shall be registered before the punishment is carried out again.
【学位授予单位】：烟台大学
【学位级别】：硕士
【学位授予年份】：2016
【分类号】：D923.2
，
本文编号：2510045
[Abstract]:Article 28 of the property Law of our country stipulates that if the real right is established, changed, transferred or eliminated as a result of the legal documents of the people's court and the arbitration commission, it shall have effect from the entry into force of the legal document and shall not take publicity as the effective requirement. From the perspective of hermeneutic theory, it is in accordance with the existing legal provisions to determine the scope of the legal instrument from the point of view of purposeful restrictive interpretation. It is a feasible way to define the scope of "legal document" by combining the theory of litigation formed in civil proceedings with the provisions of substantive law on the right of formation. According to this, the judgment of canceling the contract, changing the contract and dividing the common property can be determined, and the award can lead to the change of real right. However, the theory of litigation is not the only way to solve the problem of defining the scope of legal documents, otherwise it will make the scope of legal documents too narrow. It is another feasible way to define the scope of "legal document" by the public power embodied in the document, because the theoretical basis of the change of real right directly caused by the legal document is the intervention of public power. The legal documents, mediation documents, auction transaction orders and material payment orders made by the court reflect the public power of the state, so it can lead to the change of the real right. The mediation statement should be limited to the mediation statement which supports the plaintiff to form the right of action in the formed lawsuit, but in principle, the formed lawsuit is not suitable for the settlement of the case by mediation, so this type of mediation statement is not common. The real right acquired by the legal document shall not be registered against the bona fide third party without registration. The bona fide acquisition system shall be applied and shall be registered before the punishment is carried out again.
【学位授予单位】：烟台大学
【学位级别】：硕士
【学位授予年份】：2016
【分类号】：D923.2
，
本文编号：2510045
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