《民法典》非基于法律行为物权变动规则释论

Interpretation of the rule of real right change not based on legal act from the perspective of Civil Code

  • 摘要: 因涉及物权支配自由与市场交易安全之价值衡平,故公示公信原则被视为是现代物权法物权变动的基本原则,但其并不适于所有物权变动情形,而非基于法律行为之物权变动正是考虑了特殊情形而对其进行的补充。我国民法已经构建起来“概括+分散”模式的非基于法律行为物权规则体系。结合实证法及对理论争议的批判继受,可知:基于“公共权力”之物权变动的主体包含人民法院和仲裁机构,但其所作成之法律文书应受实体属性和形成性的“双重限制”;司法调解已经脱离简单的当事人意志合致具备审判权介入属性,亦属于此处的法律文书范畴。遗赠物权变动不能再依据《民法典》第230条处理,但是可基于对遗赠行为符合民事法律事实属性之承认,分两个阶段具体处理其物权变动;考虑我国违法建筑治理的阶段性和发展性,并兼顾公民“居住权”等基本权利之保障,目前应有限度地承认“违法建造房屋行为”所生“房屋”的不动产所有权地位,并严格限制其处分。

     

    Abstract: The principle of public publicity and public trust is regarded as the basic principle of the change of real right in modern property law because it involves the freedom of real right control and the value balance of market transaction security, but it is not suitable for all the changes of real right, and the change of real right not based on legal acts is the supplement to it considering the special circumstances. China's civil law has built up a system of non-legal act real right rules based on the mode of "generalization + dispersion". Combined with the empirical law and the criticism of the theoretical dispute, we can see that the subject of the change of real right based on "public power" includes the people's court and the arbitration institution, but the legal documents produced by them should be subject to the "double restriction" of entity attribute and formation; Judicial mediation has broken away from the simple will of the parties and has the property of judicial power intervention, which also belongs to the scope of legal documents here. The alteration of real right of bequest can no longer be dealt with according to article 230 of civil Code, but the alteration of real right of bequest can be dealt with in two stages based on the recognition that the bequest is in conformity with the fact of civil law. Considering the stage and development of illegal construction management in China, and taking into account the protection of citizens' basic rights such as "residence right", the immovable property ownership status of "housing" born by "illegal construction of housing behavior" should be recognized to the limit at present, and its punishment should be strictly limited.

     

/

返回文章
返回