占有改定与善意取得 兼论民法规范漏洞的填补
税兵占有改定与善意取得 兼论民法规范漏洞的填补
Constructive Delivery and Good Faith Acquisition
期刊名称：《法学研究》
期刊年份：
作者：税兵
单位：南京大学法学院
中文关键词：占有改定;善意取得;物权变动;目的论限缩;成文法解释模式
英文关键词：constructive delivery;good faith acquisition;transfer of the ownership of a movable;restrictive interpretation
中文摘要：
占有改定和善意取得的关系，考验着法律人的抽象思维能力和具体情形中符合事理的判断力，需要运用成文法解释模式进行法律论证。在物权法的意义脉络中，立法文本所表述的“交付”概念从未涵括占有改定。作为法律拟制产物的占有改定，其物权变动效果不等同于现实交付，与善意取得之间具有不相容性。占有改定的物权合意只能在传来取得的情形中产生效力，在善意取得的情形中则不生效力。为填补规范漏洞，物权法第106条所言“交付”应作目的论限缩解释，以免法律激励出“坏的”交易风险，有悖于此条款追求交易安全的价值取向。
英文摘要：
The relationship between constructive delivery and good faith acquisition is a puzzle which should be argued according to the mode of statute law interpretation, thus challenges scholars’ ability of abstraction and reasonable judgment. Where a thing alienated by way of constructive delivery does not belong to the alienor, can the acquirer in good faith become the owner? No answer can be found directly in Chinese Property Law, so the analysis has to proceed in semantic, systematic and teleological approach. In semantic argument, the legal term “delivery” in Article 23 and 26 of Chinese Property Law is confined to actual delivery. Although the definition of “delivery” after Article 208 of Chinese Property Law is ambiguous, we can also sure that it cannot be interpreted as constructive delivery according to systematic interpretation. Therefore, in the context of Chinese Property Law, generally speaking, the legal term “delivery” can not be interpreted as constructive delivery.From the view of systematic argument, the relationship between constructive delivery and good faith acquisition depends on the mode of how to transfer the ownership of a movable. Under the mode of transfer of a movable according to obligations, the effects of public notification and public trust of constructive delivery are both very limited, thus the reliance interests of the acquirer and third parties are in peril. Under the mode of transfer of a movable according to property right contract, although the public trust of constructive delivery is limited, trade relationships can also be simplified so long as actual delivery is the pre-condition of good faith acquisition.As a technologically legal mechanism, constructive delivery has different legal effect compared to actual delivery. Only in the condition of derivative acquisition can the property right contract of constructive delivery take effect, whereas in the condition of good faith acquisition, it cannot. In other words, constructive delivery is incompatible with good faith acquisition. To fill up the gap in the statute law, Article 106 of Chinese Property Law should be restrictively interpreted in teleological argument, otherwise “bad risk”, which is far from the aim of this article, would be induced by law.
全文阅读： 点击下载
