不动产一物二卖问题研究
许德风不动产一物二卖问题研究
Study on the Legal Questions of Double Sale of the Real Estate
期刊名称：《法学研究》
期刊年份：
作者：许德风
单位：北京大学法学院
中文关键词：一物二卖|善意取得|登记公信力|第三人侵害债权|实际履行
英文关键词：double sale|good-faith acquisition|public reliance of register|infringement of the right under contract|specific performance
中文摘要：
对于不动产一物二卖，社会一般观念认为，出卖人失信背义，应保护第一买受人。学说与判例的主流观点则认为，第二买卖合同的效力并不因第一买卖合同的存在本身而受影响，若第二买受人先完成登记，即可取得标的物所有权。不动产的一物二卖应区分不同情形，产生出卖人交出其第二次出卖所获利益、第二买受人不能取得所有权以及出卖人与第二买受人承担侵权损害赔偿责任等法律效果。在这一背景下，当前学说与判例的主流观点殊值检讨与修正，以重回守信与公平的轨道。
英文摘要：
By nature, man has the motivation to pursue the highest possible return out of a transaction. Therefore, when the market situation changes swiftly in an extraordinary scale (e. g. the price doubled in less than 6 months), both the real estate developers and the individual house owners will tend to breach the first, lower-priced sale contract and deliver the subject matter to the second buyer who promises a higher price. Although a majority of the public considers such behavior to be unfair and finds that the first buyer is a victim of the "greedy market economy", present Chinese law takes a generous or liberal attitude toward the transaction between the seller and the second buyer, only giving the first buyer very limited remedy.As the speculation of real estate flourished, double-sale practices went rampant in China during the past decades. Consequently, buyers have to face great uncertainty in the transaction and the mutual trust between the market players that is crucial for the smooth operation of the market, reduces significantly. In this context, this paper argues strongly for the introduction of a disgorgement rule to protect the first buyer, which imposes higher obligation on the seller. He should not only pay the compensatory damages, but also disgorge the profits obtained from breach of the contract. Furthermore, even after the newly enacted Property Law has vested the real estate register with ultimate evidential effect for the ownership, it is still important to be aware of the complexity of the registration system and its defects, as well as recognize the ownership acquired during the time when the registration is still imperfect. In the event that the second buyer does not have enough justification to trust the register solely and that his behavior does not fulfill the requirement of good faith, the first buyer should be offered an equity-style remedy and be allowed to keep the subject matter he bought. Lastly, tort liability can also be a possible alternative, when taking the historical and present general public opinion into account.
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