动产善意取得的法理基础
汪志刚动产善意取得的法理基础
Legal Basis of Good Faith Acquisition
期刊名称：《法学研究》
期刊年份：
作者：汪志刚
单位：景德镇陶瓷学院
中文关键词：动产善意取得;占有;公信力;交付;公示
英文关键词：good faith acquisition of movables;possession;effect of public credibility;delivery;public notification
中文摘要：
在关于动产善意取得法理基础的诸说中，对我国影响最大的是占有公信力说。该说不仅有悖于法理和民法体系逻辑，而且在实践中也会遭遇许多困难，不足为采。善意取得的本质是保证本着诚信而行为的交易主体能在社会公认的正常交易环境下依法实现其交易目的，其法理基础是交付的效力，伦理基础是诚实信用原则，交易安全保护则是该制度内含的经济理性。
英文摘要：
Among various doctrines on the legal basis of good faith (bona fide) acquisition，one theory argues that possession has the effect of public credibility, and such theory has great influence on Chinese jurisprudence. On the Basis of examining such theory and others theories, this article analyzes the three elements which provide the “public credibility of possession” theory with logical backbone, that is, the experience that the possessor is in most cases exactly the owner, the idea which views possession as a notification method of ownership of movables, and the idea which thinks the rule that “possessor is presumed to be legal owner” can protect a third party’s trust in transferor’s possession. So far as these elements are concerned，this article proposes some criticisms by theoretical analysis and experience test. First of all, the rule that “possessor is presumed to be legal owner” is not designed to protect the trust of a third party in good faith. Secondly, the idea which views possession as a notification method of “static” ownership of movables is not in accordance with the principle of public notification in property law. Thirdly, it is also an experience that possession and ownership are often not simultaneously belonging to the same person, so the opposite experience cannot be depended on. Fourthly, the idea which treats possession as the appearance of ownership of movables is contradictory to the adage of Roman law which is stated as “ownership and possession have nothing in common”. On the other hand, in practice, the “milling machine” case (a famous German case) not only makes it clear that there exists contradiction between § 933 and § 934 of German Civil Code, but also indicates that the “public credibility of possession” theory has been in trouble in dealing with practical problems, and that “delivery” plays an important role in good faith acquisition system. Through analyzing the public notification function of delivery, that is, to protect a third party’s passive trust and the transferee’s positive trust, this article draws some conclusions. The essence of good faith acquisition is to assure a dealer in good faith to realize his intention of bargain in a normal trading environment in society. The legal basis of good faith acquisition is the legal validity of delivery, the ethics foundation of it is good faith doctrine implied in the requirement of good faith, and the value of safe and convenient trading reflects the economic rationality and the spirit of the times embodied in good faith acquisition system.
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