中国物权法上的登记对抗主义
龙俊中国物权法上的登记对抗主义
Registration Confrontation Doctrine in Chinese Real Right Law
期刊名称：《法学研究》
期刊年份：
作者：龙俊
单位：北京大学法学院
中文关键词：物权法;登记对抗主义;理论构造;第三人
英文关键词：real right law;registration confrontation doctrine;theory construction;the third party
中文摘要：
登记对抗主义下的绝大多数理论构造与我国所继受的物权法的理论体系相冲突。只有权利外观说最适应我国的民法体系，也最符合我国的立法目的。依据该说，当事人间仅因意思表示即可发生完全的物权变动。但在当事人进行移转登记之前，第三人由于信赖物权尚未变动的权利外观而从事了交易行为，法律保护此种信赖，承认第三人在登记后可以取得该物权。我国法律原则上仅保护善意第三人，总体上符合效率价值。但是参考比较法和法经济学，也应该承认一些例外：侵权人等完全无权利的人、继承人、连环交易中的前手或者后手、狭义的一般债权人和特定物债权人属于绝对可对抗的第三人，即无论该第三人善意还是恶意，未登记的物权人都可以对抗之；破产债权人、扣押债权人、参与分配债权人等属于绝对不可对抗的第三人，即无论该第三人善意还是恶意，未登记的物权人都不可以对抗之。
英文摘要：
The dualization of real right transfer has been adopted in Chinese Real Right Law, that is,"publicity as an effective element" as the principle, and"publicity as a confronting element" as the exception. The study on real right transfer in China before mainly focuses on the former, while the study on the latter shows its inadequacy. Therefore, how to explain the registration confrontation doctrine as the exception is a theoretical and practical problem we have to deal with.On the theoretical level, there are a few problems to be answered: what is confrontation? Which real right is the one that cannot confront a third party? And how can reconcile the systematical conflict of the two doctrines of real right transfer? This article observes kinds of theory construction of the registration confrontation doctrine in the comparative law, and draws the conclusion that the theory of right appearance, which belongs to the theory of public reliance theory, is the most suitable theory for explaining the legislation purpose and the civil law system of China. According to this theory, two parties could transfer real rights completely by declaring their wills only. However, if a third party executes transaction before the former two parties’ registration, owing to trusting the unchangeable appearance of the real right, the real right of the third party should be recognized after his registration.On the practical level, it is a tricky problem to define the range of the third party in bona fide who could not be confronted without other party’s registration. It is generally an effective way to distinguish between the third party in bona fide and those in mala fide in principle, and to protect the third party in bona fide in Chinese Real Right Law. With the methods of legal economics and comparative law, some exceptions should also be accepted, that is, complete non-obligees such as infringers, heirs, prior parties and subsequent parties in transaction, general creditors in narrow sense and specific objects creditors could be confronted absolutely, and bankruptcy creditors, seizure creditors and creditors participating in distribution could not be confronted absolutely, whether in bona fide or in mala fide.
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