物权法第106条解释论之基础
叶金强物权法第106条解释论之基础
Article 106 of Real Right Law：the Foundation of an Interpretative Theory
期刊名称：《法学研究》
期刊年份：
作者：叶金强
单位：南京大学法学院
中文关键词：善意取得;信赖原理;物权表征方式;公信;公信力强度
英文关键词：bona fide acquisition;principle of reliance;mean to show the existence of real right;public reliance;public reliance intensity
中文摘要：
物权法第106条的妥当解释，需要确定其背后的原理，厘清公信力与善意取得的关系，并明晰公示、公信、公信力强度等基本概念间的关联。第106条之规定是以信赖原理为支撑，信赖原理决定了不动产、动产善意取得基本构造的一致性，二者仅因登记和占有之公信力强度的高低以及登记和占有之表征能力的差异，而在细部上存在一些不同。公信力与善意取得为一体之两面，动产、不动产善意取得均是公信力的体现。登记公信力强于占有公信力，公信力强度会随社会背景的变迁而发生变动。我国未采纳德国法上的绝对公信力理论，未采纳德国法上分别由两个不同原理来支持不动产、动产交易安全保护的分立模式，而是采行统一保护模式。
英文摘要：
In order to interpret appropriately Article 106 of the Real Right Law, it is necessary to ascertain the doctrine behind it, make sure the relationship between public reliance and bona fide acquisition, and confirm the relevance of the concepts among publicizing, public reliance and public reliance intensity. The provision of Article 106 is based on the reliance principle, which determines the consistency of the basic structure of real estate bona fide acquisition and chattel bona fide acquisition. Meanwhile, there are some divergent details of real estate bona fide acquisition and chattel bona fide acquisition, which depend only on the different public reliance intensity of register and possession and their different abilities to show the existence of real rights. Public reliance and bona fide acquisition are two aspects of one thing, that is, both real estate bona fide acquisition and chattel bona fide acquisition are the reflection of public reliance.However, in German law, real estate bona fide acquisition and chattel bona fide acquisition are provided separately in different provisions and based on different principles, so they have different legal structures. The public reliance of real estate register is regarded absolute in German law. Such an absolute public reliance notion and the discrete protection model of chattel and real estate transaction security are inappropriate in its value judgment. In Chinese civil law, both of the register and possession are entitled with public reliance, and the intensity of the former is stronger than that of the latter. Chinese law does not adopt the theory of absolute public reliance, the real estate bona fide acquisition and chattel bona fide acquisition are stipulated in one clause of the Real Right Law (Article 106), and they are established according to an uniformed doctrine. These are reasonable choices. The public reliance intensity has various representations in diverse transaction backgrounds and fields, and it is fluctuating continuously and is specified ultimately in the given case by the influence arising from the degree of imputation and the reasonableness of reliance.
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