On the Theoretical System of Property Act Scientific Construction
Keywords: Property Act, the principle of separation, abstract principle, the principle of formalism, property changes
Summary: Real property behavioral theory is that the legal system, and even among the Civil Law system, a very important basic theory. Scientific Construction of Property Act Theory is the theory of property Law to solve a lot of doubts and confusion of the key should be built up to the principle of separation of abstract principles (non-sexual, and formalism for the system constitutes the principle and system of logic-level behavior of a scientific theoretical system of property rights in China.
One, of the problem
China <<Property Law "> I was in October 2007 date, as the ownership and use of standardized basic Civil legal norms, the terms of perfecting the system, or from the practical problems of treatment and so have played a certain positive role. But this Law is not perfect, and its arrangement in the content, system design, the use of Technology and other aspects of legislation there are still many open to question and be improved, this is not to be enumerated here, but I believe that China << Property Law "> in the design of the system and select the property does not explicitly recognize it is a legislative act theory, a regret. <<Property Law"> only for the Real Property Article 15 provides as follows: "entered into between the pArties on the establishment, changes, real property transfer and elimination of the contract, unless otherwise provided by law or the contract provides otherwise, take effect from the conclusion of the contract, did not apply for registration of property rights does not affect the validity of the contract. "Also, Article 23 of the Act for movable property states: "The establishment and transfer of movable property, upon the effectiveness of delivery, except as otherwise provided by law." clarity of the above two provisions and failed to act to resolve claims, actions, and Real Property changes the legal relationship between, there are still deficiencies in the practice of the DepArtment, which is entirely on the issue of further study necessary. Traditional Civil law property act theory is a very important theoretical basis in theory, the theory of Civil law in China is also a lot of controversy, much of the focus of attention, hot issues, as the product of theory by German Law, and the German jurist during the design of the theory in a strictly logical thinking and a high degree of abstraction and the use of Technology, but in our country based on history, culture, legal systems, ways of thinking, customs, and many other reasons, the Property Act Theory " China "or" localization "in the process many problems have emerged in order to make academic Research and discussion of the issue both as a" cliché "the topic, but has been unable to form a more scientific, unified conclusion. to Property Act and acts as an integral pArt of the legal theory is typical of Civil law countries - the wisdom of German civil law, civil legislation in the event of abandon the theory, practice and advocacy of Mr. Lu Xun "used" does not match , but "brought" to the theory, but the civil law of the Lord their academic Zhang, debated. the crux of the matter, my opinion is not building up a scientific theoretical system of China's Property Act. and China Property scientific construction of the theoretical system behavior but also must satisfy three basic requirements, namely: Content of the integrity of the system, the tightness of the logic-level design, definition accuracy of expression. I tried to solve the property there were a number of behavior theory problem, to the three basic requirements for standards, build a scientific theoretical system in China Property Act, as the Property Legislation in China to make further improve modest [1].
Second, China's Property Act system of scientific theory construction Ji Zhu Discussion
In my opinion, the principle of separation of abstract principles (non-sexual, formalism principle is the theoretical system of Property Act constitutes an integral part of the act is the theoretical system of property law technical design logic-level results. While the three is not the author's first principle, but the nature of these three provisions of the principle itself of Research and the relationship between them is unclear just like there is suspected, the author focuses on the design from a technical point of law that the property should act theory Property Act is the principle of separation theory for the starting point for technical design method to abstract principles of behavior theory method property core Technology design to behavioral formalism theory of property law principles designed to protect the technical integrity of such a system, logical and scientific theoretical system.
(A separation principle is the Law of Property Act Theory starting point for technical design
The principle of separation is the German "Trennungsprinzip" is usually translated by some scholars, sometimes called the "independence" {1} or the "principle of distinction," {2}. But some scholars believe that "Trennungsprinzip" claims about the term was intended to act and the Property Act and effectiveness in the act itself independent, and its purpose is clearly not "distinguish" and should be "separation" and therefore should use the "separation principle" is appropriate {3}.
1. Position of the principle of separation
Property Act to constitute a theoretical system point of view, the essential problem is to change the legal effect of real right property behavior of phase separation behavior and claims that the solution behavior of the objectivity of the independent property rights issues (academics this issue to have discussed, and not focus of this paper, the author in his article devoted to the problem. Only claims first acts of behavior and separation of property, we can further explore the legal effect of changes in property rights, property rights acts, acts which the creditor the relationship between the problems, so the principle of separation of property act theory method constitutes the starting point for technical design.
2. The concept of separation of
To the concept of separation of terms, Germany and most of mainland scholar in Taiwan and no matter how we express in the text, and its real meaning is more clear, consistent, that is, acts of property claims between behavior and separation of independent existence, and are constitute an independent legal action [2]. For example, Mr. Xie Zaiquan Taiwan scholars talk about the independence of Property Act that: "Property Claims behavior behavior and separated from each other, act independently of the claims, the independent acts of what we called the property sex. "{4} Mr. Shi Shangkuan stated as:" only on the relationship between the person requesting credit contract, and direct changes of biological property rights contract, utterly different. "{1} Edited by Professor Kou Zhi <<civil law Science>> South Korea Professor Song said: "Right to a change in the form of contract cases, contract claims contracts and property rights are two different legal acts, creditor behavior and property behavior completely separate, independent, this matter claims the right to act independently of the characteristics of behavior, that the independence of the Property Act. "{5} Therefore, the principle of separation of property may be brief, separation of behavior and creditor behavior. Wangze Jian {6} {7} Wang Liming and other scholars expressed the same with these statements.
3. In our understanding of the principle of separation problems in the academic
However, the meaning of separation of understanding and expression had to be very clear, however, scholars in China are different in different parts of the separation of the different statements to become blurred.
First, my eminent scholars of the field of property law in 1996, Professor Sun Xianzhong 3 <<Law Research "> on a piece called" <Property Act Theory Origin and Meaning>> articles and his monograph <"German Contemporary Property Law" > in respect of the "separation principle" made the same statement, he pointed out that "the meaning of the principle of separation is the main German law the right to transfer the delivery of the subject matter of legal obligation (usually debt or contract law called the contract with complete change in the behavior of a variety of property as two legal acts, not a legal act, the former acts as the cause, the latter property acts. because these two acts have their own intention and the establishment of an independent way, so They are two different separate legal fact. "Here, we can see that Professor Sun shall be referred to the principle of separation of property and creditor behavior of phase separation behavior of each other as independent legal principles.
But then, in 1999, Professor Sun No. 5 <<Law Research "> on a piece called" <Right Change the distinction between cause and Policy "> the article that" the so-called principle of distinction, that in the event of property changes when the property changes and the reasons for the results of property changes the fact that the two laws, the establishment of their entry into force of the legal basis according to different principles. This principle comes from the German civil law, the German Law 'Trennugsprinzip', or said the principle of separation. "Thus, where the principle of separation within the meaning of Professor Sun is the property but the causes and consequences of changes in the principle of separating. Academy of Social Sciences <" China Property Law "Proposal Draft> Article 7 on the Right behavior changes and the reasons for the principle of a distinction pointed out: "to place the reasons for the purpose of property changes behavior, since the entry into force of the legal establishment. In the results of property changes can not occur when the party at fault shall be liable for breach of contract." In the notes on the article also made a further explanation: "to place the reasons for the purpose of property changes behavior, mainly contract, it belongs to the scope of claims French relations, the establishment of effective law claims based on contract law. "{8} The reason for the existence of independent acts of behavior outside the property has not been mentioned.
Therefore, National Taiwan University Professor Wang Zejian in its <<property law on the freedom and the "Limitations> an article about the draft, said:" The so-called 'Right Change and its causes behavioral principle of distinction,' Department of the Chinese draft law that pioneered the concept of ... ... should be noted that the draft property law in China so-called 'property changes its behavior because the principle of distinction', it seems different from Germany, Switzerland, Taiwan law the so-called 'principle of distinction,' or 'separation principle'. I usually understood by the German law the so-called While affirming the principle of separation is present in the burden of an independent action (claims actions, causes other than acts of Property Act, the distinction or separation of property changes and the reasons are not only act, but the property caused by changes in behavior and property cause of behavior. "
Therefore the principle of separation of two different contents, regardless of the Theoretical System of Property Act, or legislation for the guidance system of property law may have different effects. In accordance with the principles of the former, then the behavior is bound to have a separate property, so that the material the right to act with independence, and in accordance with the principles of the latter, it might act as a debt the property changes the legal effect, and thus can not recognize the independent existence of Property Act. However, the property acts as a scientific theoretical system construction of the scientific meaning of the principle of separation of property rights should be separated from behavior and the principle of creditor actions, this principle is also the whole system of property law act theory the starting point for technical design.
(B abstract principle (the principle of non-sexual act theory is the property core Technology design method
Abstract principles is the German "Abstraktionsprinzip" the Chinese translation, some scholars have to paraphrase as "without cause" {1} or "because of the principle of" {6}. Needs to be emphasized at this point is "no result" and is not no reason, but to show that the relationship between and the reasons therefore should be more accurate paraphrase, "not to let the principle of" or "Do not because of." article that should be used "abstract principle" is appropriate because it not prevent people from understanding the content of that principle, can be taken to avoid the "no result" of the reference to the misunderstanding. but in the text refer to the views of different scholars still use their habit of saying when.
1. The status of abstract principles
Property Act to constitute a theoretical system perspective, recognition of an independent objective existence of Property Act, which recognize the property rights of phase separation behavior and creditor behavior, their actions are an independent legal separation principle is the theory for the Property Act system, the starting point for technical design method. So on this basis, followed by a question is the legal effect of changes in property rights, property rights acts, creditor relationship between behavior of the three in the end? abstract principle is precisely the answer to this question and the conclusions reached. so abstract principle is the prerequisite for understanding the principle of separation, both of which have close ties, although just from the logic point of view, recognition of the principle of separation does not necessarily lead to an abstract principle must be recognized, but from the material theoretical system of the right to conduct constitutes the spirit and purport of the theory point of view, the abstract principles of science to solve the three relationships, and this is real right act theory for the legislative, judicial and the establishment of a safe, fair, and efficient market transactions The major significance of the order, it is also the essence of the Theory of Property Act. Therefore, whether the abstract principles of behavior theory in the system constitutes property, or in the law are among the core technical design status.
2. The concept of abstract principles and analysis of existing statements
Recognition of property claims in the behavior and phase separation behavior, are a separate legal act on the basis of the separation principle, acts of Property Act and claims there is bound to show the following three states: one is the only behavior but no property claims behavior, such as the appointment, employment, etc., and the second act is the only property without the creditor behavior, such as ownership of the abandoned, the third is the coexistence of Property Act credit behavior, such as trade, reciprocity and so on. The behavior and properties in the claims behavior of co-existence of the right to state an objective in terms of their effectiveness, can be divided into four cases, namely: First, conduct credit behavior and the establishment of effective property rights, this situation is normal social life, it is not For example, the second is behavior and Property Act claims are unsubstantiated or invalid, for example, one party is no capacity for civil conduct and the third is the establishment of effective credit behavior, but behavior is not established or invalid property, for example, the contract (the establishment of effective credit behavior After the party due to mental disorders and a person without legal capacity, but was delivered (Property Act the subject matter, in this case the property null and void (actors, not law, transfer of ownership of the object does not occur, Fourth, claims act does not hold, invalid or revoked, but the establishment of an effective Property Act, for example, claims the subject matter of the contract after the delivery but was withdrawn or declared invalid. then the Property Act should be based on abstract principles of behavior and property the case of co-existence of debt behavior, and to the establishment of Property Act is the prerequisite for effective. As Professor Wang Zejian said: "Real Rights and the Application of theory to property established as a prerequisite for effective action itself, if the property the act itself does not hold, do not take effect, revoked or invalid, the fundamental problem does not occur without reason. "{6}
Expression to the concept of abstract principles, the scholars have different interpretations, and different expressions of different meanings, such as: Professor Wang Zejian said: "No act of sexual property that is not their reason for the effectiveness of behavior (behavior claims about though not established credit behavior, do not take effect, revoked or invalid, the Property Act does not be affected, is still the legal effect of property changes occur. "{6} Professor Xie Zaiquan stated as:" consequent behavior became property claims reasons for behavior. If claims about behavior of the effectiveness of Property Act, then the property due to acts of conduct, there is (there because of doctrine, on the contrary, if the effectiveness of Property Act, not the reason that the impact of debt behavior, the Right conduct, not because of the act (no due to a non-sexual doctrine. Shen words, the claim is invalid or acts of naturalization revocation of vertical, the property is invalid or missing the conduct was not so exist. "{4} in the editor, Professor Kou Zhi The <<Civil Law>> book, Professor Han Song said: "The so-called non-sexual behavior of real right is the legal effect of Property Act as the cause of behavior is not behavior of the claims." {5} Through these means statements, we can see that there are claims of these scholars believe that the existence of acts of the head of the occasion, the initial claims because behavior is behavior of Property Act, but the effectiveness of Property Act is not effective because the impact of behavior, that the effect of their behavior and do not impact, so they are the legal effects of the Property Act claims behavior from "abstract" out.
Yet Mr. Shi Shangkuan Property Act for an abstract principle in the statement held that: "Property Act claims based on the reasons for action, for the performance of acts, before the problem occurred there because of uncaused. That was mourning the changes in property rights for the reasons between the Left and Right, that there is a result of the doctrine. does not of course be about the reasons for those relations, it means that no result of doctrine, also known as the property of non-sexual. any property in accordance with changes in the legal act, must have its reasons. For example, the transfer of land ownership, the reason was for the sale and purchase behavior, gift or reciprocity. "{1} Professor Sun Xianzhong in 1996, when expression of abstract principles, that:" the meaning of abstract principles, referring to Property Act and results in their effectiveness behavior does not depend on the reasons for the establishment of independent, that is invalid or revoked because acts can not lead to the fulfillment of material behavior, of course null and void and revoked. "{9} At this point Professor Sun is basically consistent with the first view, but has Property Act referred to the reasons for the results and the relationship between the so-called relationship. Professor Sun in 2001 an essay entitled "<talk about Real behavior theory>> The article states:" abstract principle, that is, the so-called non-legal circles in China because of the principle, that property changes from the constraints of its reasons for the effectiveness of the principle of behavior. Because changes in the property, the property directly from the change in property rights between the parties independent of the meaning, not the meaning of claims, so the results of property changes meaning is not directly affected by credit constraints. "{2} In these expressions, we can see, Mr. Shi Shangkuan conduct, though that property rights act claims because behavior, but he was non-sexual means that the legal consequences of Property Act - Right of mourning have changed about behavior without reason, therefore he is to the legal consequences of the behavior of thing causes behavior from the "abstract" out.
Professor Sun in 2001 from the abstract interpretation of the principles expressed in the second half, we can clearly see that the property he should change the property agreement between the parties constitutes a direct causal relationship between changes in property not subject to claims Relations, but he has the concept of the first half of the statements, in the absence of "cause behavior" to make any explanation of the circumstances, pointed out: "Real change in behavior is not the reason the effectiveness of constraint", where "the reasons for behavior" in the end is the reason property changes behavior, or acts of behavior of real right reasons, and based on his statements should be understood as a property perspective the reasons for changes in behavior. So, immediately produced a misleading questioned by some scholars and challenging issues, namely: "If property changes are not the reasons for the effectiveness of behavior constraints, and property rights agreement (the Property acts constitute the direct cause of property changes, so the property changes from a desired property (the effectiveness of Property Act constraints. "and this inference is clearly inconsistent with the basic theory of Property Act. creditor relations here are not given any expression.
3. Presentation on the concepts of abstract principles
The concept of abstract principles in order to have a clear understanding and scientifically interpreting evidence, based on the premise of the above analysis, we must first clear a few questions.
One problem: "the effectiveness of Property Act" and the "Right Change" (or "property of the funeral may change the" relationship? Between the two is the same meaning? In both types of concept statements, we can find key difference is that the former is the "effectiveness of Property Act," abstracts from the creditor behavior, whereas the latter "Right Change" behavior from the abstract claims. This paper argues that "the effectiveness of Property Act" and " Right Change "is not the same thing, with a different meaning," the effectiveness of Property Act "is to the legal status of property in terms of the act itself, it refers only to property in itself act as a legal concept in the next bit of the law effectiveness of the state is "effective" or "invalid" about, or "pending." and "Real Change" is on the property in terms of the legal consequences of acts, it refers to itself arising out of acts of effective property rights the legal consequences, namely, "property of the funeral was changed." Thus, the concept of an abstract representation of the principle of "the effectiveness of Property Act" and the "Right Change" must not be understood as synonymous. However, due to Property Act "effective" or "invalid" about, or "Pending", that is, the effectiveness of state Property Act of the corresponding content is "Right Change" or "property does not change", that Property Act the legal effect of the legal acts of state and property results in the content or meaning of consistency. but in the strict, scientific concepts, or statements to make to distinguish between the two, and use accurate, because, "Property the legal effect of acts of state "and" the laws of the results of Property Act, "strictly speaking are two levels of questions, definition statements are standardized terminology, accuracy is directly related to understanding of the definition of the concept and the related theory is accurate is tight in logic, but also to the exclusion of other scholars on the Theory of Property Act Doubts.
Second problem: the behavior and claims the case of the coexistence of Property Act, property changes throughout the course of so-called "relationship reasons", "cause behavior", "reason" and other words, they mean how in the end? Performance? Due to the different scholars on this point presentation and understanding of different, making misunderstandings in some situations, and become those who do not recognize the property rights theory of criticism is based on behavior. For this I believe:
First, changes in property and property behavior (look at the relationship between the desired property, property changes, the property may lose changes of behavior by the Property (the Property caused by the agreement, Behavior and Property Right logical changes constitute a direct "causal relationship", or so-called "direct cause of changes in property rights," and in this relationship, both in the subjective purpose of Property Act, or in the objective legal effect, have a direct point property changes, so in this session, and did not take the abstract principles of law the use of Technology.
Links to Research Papers Download http://www.hi138.com Second, the creditor will look at behavior and acts of property relationship between the behavior of the multi-property claims based on the normal behavior of children born to fulfill the obligations for the purpose of behavior that claims are often the ultimate goal is the desire to obtain property, Property Act claims constitutes therefore the reasons for behavior (more precisely should be the motivation of behavior, but not the legal classification of the purposes of behavior-based, but the effect of the meaning of behavior based on behavior for purposes of claims , to place a claim for its claims law effective means for its effect, and can only occur in the objective realization of the right of the legal effect of the request, and therefore in the chain, the use of abstract principles of law technology, the effectiveness of Property Act abstract behavior from creditors, so the whole process of change in the property "because relations" should be as shown below:
[1] does not, of course there are links in the logic of causality, but in normal circumstances claims constitutes a motivation for acts of Property Act (the pass that causes behavior.
[2] is itself part of the objective logic of causality, property behavior is the direct cause of property changes.
Based on the above analysis and to clarify two issues, made clear: First, "the legal effect of acts of state property" and "the laws of the results of Property Act," although the content is consistent, but depending on the precise definition of the concept and logic strict requirements, you should use "the effectiveness of Property Act" and the second, the whole process of change in the property, the "cause of behavior," the title refers specifically to "credit behavior", but "the direct cause of changes in property" is Property Act refers to "the direct cause of changes in property rights" and "cause behavior" have different meanings, and because the abstract principles of law to apply the existing techniques [1] only shows the part of creditor behavior and effect relationship between the Property Act problems, but also did not relate to the [2] Property Act as the legal aspects of the results of property changes, coupled with the principle of separation itself is the property separation behavior and claims act, therefore, the concept of property rights principle of behavioral science theory of abstract statement should be: the process of property changes in behavior and property behavior of the coexistence of the case debt, property not subject to the legal effect of acts of Property Act as the cause of behavior (actions or motives influence the effectiveness of claims act, is material abstract principles of right behavior.
4. The meaning of abstract principles
Abstract principles involved in transfer of property, acts as a cause of behavior and its relationship between the means of technical processing method has been widely used in a number of property system, in addition to the field of Property Law Property Act, the German Civil Law in the areas of claims claims for and the debt burden, the field of commercial law in the Negotiable Instruments Law Bills in both conduct and other systems the Application of abstract principles. is because the abstract principles of civil law in Germany has been widely used, and this law techniques and shows that the German nation abstract conceptual thinking preference, so the abstract principles of behavior of real right referred to as "typical of the Department of Germany and France," {10} or "German private law concept of a basic law principles of law" {11}.
The practical significance of abstract principles, the main security is to protect the transaction (which is not the focus of this paper, I will be in his article focuses on. In summary, the abstract principles of behavior theory constitutes the entire property law technical design core.
(The principle of the three forms of behavioral theory of property law is the protection of the technical design
The essential attribute of the property is that it is a world power, absolute power, with the exclusion of the property, property rights behavior and claims the biggest difference is that the behavior of rational behavior of real right for the material on the basis of the will and the will of the main body of the combination of external , and the legal effect of this combination is the property directly to change is a right of disposition. therefore the starting point for property changes, the end and the whole process of property changes are on the subject matter outside the will and the will of the The combination of. Here, the so-called "outside the will" of the request "because the objects of the desired behavior but the delivery of materials that exist in the abstract meaning of that, there must be a formula to express sexual behavior or agreement is recorded in this matter, "{12}. and this act of publicity in terms of the personal property is delivered, in real terms is the registration, namely, the requirements of the principle of formalism.
I. The principle of status form
Property Act as the principle of separation to make claims to act independently of the existence of such an independent existence is independent of the meaning of relying on the property based on the objective existence of abstract principles to the legal effect of the behavior of thing the legal effects of acts from the claims in the abstract, this abstract is the meaning of relying on the legal effect of the independent property and claims of the legal effect of the meaning based on different, and in this distinction between the different meaning and different meaning to the legal effect of the analysis is As a means of analysis of the behavior of the carrier and as the starting point, that is characterized by different meanings of the content analysis to uncover the different behavior of different behaviors mean and mean effect of the law, meaning and behavior that constitutes the content and form logic relationship, the two will not separable. then the theoretical system of behavior constitutes a property perspective, formalism, the content of the principle of separation of the principles and requirements make the implication of abstract principles, different laws have different legal effects mean, give rise to different legal between the different legal systems apply the basic ideas can have a cognitive form, legal theory and to related construction and operation of legal practice has the possibility. because all the meaning and effect to achieve its Suoyu , must be completed with the expression of behavior, so "Real Rights, Department of independence and non-sexual forms of behavior from the property doctrine" {4} The principle form of behavior constitutes a theoretical system of property laws designed to protect technology , constitutes an essential property of behavioral content of the theoretical system, and our behavior theory scholars talk about the content of property rights often constitute the only principle of separation (or the principle of independence and abstract principles (or principles of non-sexual expression and analysis, while ignoring the principle of formalism.
2. The principle of the analysis of form
The principle forms the basic meaning of place is wanting to change the property means property, must be a combination of objective behavior of publicity, before property changes occur. Here's the formula for the delivery of sex in terms of movable property, immovable and made for the registration. So then came the problem is that, due to the different understanding of the concept of Property Act, scholars, and registration for the property on the delivery of the composition acts have different understanding. Some scholars believe that the meaning of that property (including property Property rights is the desired behavior of their own (individual behavior and property deeds, registration or delivery of the effective elements of its {6}. Some scholars believe that changes in property rights act must be the meaning of property rights and registration act or delivery of the combination of { 4}. In essence, the issues involved in the delivery of Property Act and Registration in the end is the establishment of special elements, or elements of Property Act the special effect. The former judge is a fact, it solves the existence of a Property Act problem, which is a legal judgments, it addresses the effect is a matter of Property Act, although both the legal effect of its real purpose will lead to a lack of elements, is the legal property changes can not happen effect, but to find out the problem on the very concept of Property Act and the Property Act system of scientific theory building but has a very great significance. This paper argues that as the delivery of public notice and registration of sex acts should be set up as a property element, Property Act and the simultaneous establishment of the effect on property law, namely the establishment and effective only in time with the same time he does. The reason is: both the delivery and registration of property rights implied in the act is the legal meaning of property rights changes in behavior if not the delivery of movable property and real estate registration act, then the parties from the property means no knowledge, no test, the legal effect of property changes can not occur, and act before the completion of delivery of movables and real estate registration act before the meaning of the parties do not fall on the meaning of the Property Law said. Property and characterization of the meaning of the meaning of a particular behavior is the relationship between content and form, the two can not be separated, meaning the behavior is not the lack of property Property Act, naturally, not effect on the occurrence of property law, not act as a representation of a particular meaning, we simply can never know the meaning, let alone understand the meaning of Suoyu the legal effect of the problem. Therefore, the delivery and first registration of Property Act elements of the special set up, no delivery and registration of property rights do not exist acts will act, and thus can not understanding the so-called "property rights mean" the precise content. Second, because there is no delivery and registration of Property Act does not exist, Therefore, not to mention the legal effect of property changes. In particular, point out that this need is the delivery of movable property behavior easier to understand, however, act on the registration of real estate terms, in the "" German Civil Code>> Article 873 2 there is such a provision: "In the pre-registration, the parties were both in the meaning of that notary public, or the Land Registry to make or present intention, or who has the right to meet the <" Land Register Act >> Registration permit required to deliver on the relative person, before bound by the agreement. "{13} for the provision of content, some scholars said:" These acts may also explain, meaning the party with this property changes. In Under such circumstances, the parties will effect the meaning of property changes, it will be bound by the law. "{2} Therefore in this desire that is sometimes outside of the delivery and registration of property rights there are also independent of the meaning, and also effect on the occurrence of property law. I think that this understanding and explain the contents of a defective, because the provision does not deny the existence of registration, the legal effect of changes in the incidence of property is still based on the premise registration, pre-registration party The implied meaning of behavior is not worth the property to determine the meaning. It contains a logical relationship between the front and rear, while the provisions "in the pre-registration" has the qualification to the logic here is more clearly expressed was. Therefore, I believe the meaning of the provision should be: the party making the provisions set forth in the acts of any one of the three after the change of registration must be further acts, then the law will change the registration of acts of force with the premise of the Property Law to the parties in the three acts under the provisions of the moment, it will be registered only by the provisions of the legal effect of the time with the premise of it, does not give other acts to the meaning and effect of Property Act, also did not denied registration by the behavior of the property should have the force and legal effect, because if you want to explain the basis of this provision in addition to the delivery and registration of property rights there are other forms of meaning, then followed by a question difficult to justify itself, that is, acts of the parties carrying out the above do not make changes after registration has been the behavior, so they know how to determine the behavior of the three parties during the existence of separate property to mean? the above acts would, of course to occurrence of property (land the right to change the legal effect? Therefore, delivery and registration of these two formulas sexual behavior has set up as a property element, the first objective is to understand the existence of Property Act, confirm the behavior of property and creditor behavior independent of the separation principle, followed by the behavior of thing is to understand the force of law and property rights in the act of carrying the meaning can not be separated. This is the true meaning of the principle of formalism, and only for the protection of this and build up the Property Act theory is a logical and scientific theoretical system.
(D Summary
Foregoing analysis, the principle of separation means to separate the existence of property as a starting point to solve the objective existence of Property Act, and make the phase separation behavior and claims, the abstract meaning of the principle of an independent property rights and the meaning of legal claims Effects of different means for the entry point to address the legal effect of property on the first act, then the result was of course to include legal relationship with the creditor behavior problems, and the principle of formalism is not from the separation of content and form as the starting point, making expressed by the above two principles the content of the anchor with a logical, and so they have a form that can be cognitive. Therefore, both in content and form, or in the Technology Application, the Property Act is the theoretical system based on the principle of separation of the starting point for technical design method to abstract principles of law for the technical design of the core, the principle of formalism for its technical design protection law, and each principle has its accurate, the only definition, On this basis, the formation of a complete system, logical and scientific theoretical system.
Third, the Property Act system of scientific theory construction of theoretical and practical significance
Behavior and theory of property rights system, and scientific, clear, clear understanding of, both from a theoretical sense, perfect for the civil law theory, practical sense, or from the specific design of the system to protect the orderly market economic order operations are of great significance.
(A general civil code, property rights theory of behavioral theory to make systematic, perfect
Theory of Property Act simply by the sense of a logical order to understand that the autonomy of private law are the basic principles of civil law, the legal implication of the value of their primary means of legal action is to be achieved. Therefore constitute a legal theory The main contents of the General Principles of Civil Law, and is the essence of the civil law system, the most brilliant and bright spot, then the legal theory must be in all parts of civil law are embodied in the content, if you do not recognize the property as a theoretical system of behavior and the law行为之下位概念的存在,那么法律行为概念及其理论则在民法主要内容之一的物权法部分缺失了,从而使得对法律行为概念的抽象以及将其作为民法总则之主体内容都成为不可能.因此正是物权行为的客观性及其理论体系的完善化,才使得法律行为理论及由法律行为所引起的法律关系理论都成为了民法总则中科学的理论体系,从而使民法总则理论科学化、完善化,并最终构建起了一个科学严密、博大精深的民法理论体系.
(二物权行为理论更能够保障交易安全,促进市场交易秩序的良性运作
民法作为商品经济一般规律之反映,应当具有维持与促进正常商品经济秩序形成与运作之功能,而作为商品经济发达阶段的现代市场经济的形成与发展,民法的这一功能将表现得更为巨大,因此,在进行民法理论探讨以及相关制度设计时就必须考虑到这一点.而对于物权行为理论而言,其实践意义之巨就在于保障交易安全,促进正常交易秩序的形成与有序运作,因为在物权变动时,由于物权之排他属性,势必会在物权变动中不仅影响到交易当事人的利益,还会影响到第三人的利益,从而影响到整个交易秩序的稳定."第三人利益实际上正是市场经济交易秩序的化身,社会整体的正常经济秩序就是由一个个第三人连接起来的".{2}因此在物权变动中如何平衡好物权变动当事人的利益和第三人的利益,则直接关系到市场交易安全、公正、效率等价值目标的实现.
首先,对出卖人(原权利人而言,当买卖契约不成立,因意思表示错误被撤销,或违反公序良俗无效时,而买受人已将物出卖给第三人,第三人主观恶意时,出卖人无法向第三人主张"所有物"返还请求权(物权请求权,而只能向与其有直接法律关系的人提出不当得利返还请求权(债权请求权,这对出卖人似乎不公平.笔者认为法律如采纳严格的物权行为理论体系,尤其是有形式主义原则所具有的公示效力,第三人依该公示之行为支付了相应的对价,并为相应之交易行为,一般而言就无交易上的过错.而原权利人在救济自己的权利时,必须对因自己疏于管理自己的财产而将所谓的"物权请求权"降低为"不当得利请求权",这并无不公平之处.而且原权利人一人之利益与由不特定的多数第三人之利益构成的整个交易秩序而言,孰重孰轻自是一目了然,因此可以说,在这里如果采物权行为理论,则只能说民法就此制度设计而言,在公平与效率的价值选择上略微偏向了效率(此处并非置公平于不顾,而只是价值比较后的主次之分.
其次,就第三人利益而言,在学界向来有依物权行为理论之保护与依善意取得制度之保护的争论,有些学者认为善意取得制度足以保护第三人利益,进而保护交易安全,而且还可以克服所谓"物权行为理论的诸多弊端",故完全可以不采物权行为理论.笔者认为这种观点值得商榷,因为物权行为理论所具有的理性思想及其严密的逻辑体系,较之于善意取得制度更能保护交易安全,倒是善意取得制度的一些缺陷使得在适用该制度时其操作性和成本都问题较多.在此仅简单指出善意取得制度的最大缺陷乃在于善意取得制度中所谓的"善意"纯系一主观心态,并且无客观标准衡量,更为重要的是它将第三人所谓"善意"举证责任的"包袱"抛给第三人自己,即第三人必须证明自己存在着一个没有公共客观标准的主观"善意",紧随其后的问题就是由于这个"善意"没有客观标准,原权利人及其他人可能又举出第三人主观"恶意"的证据来,最终将产生这样一个戏剧性的后果,即本来是为了解决物权变动这一法律问题,而最终却变成了一场为了一个没有客观标准的主观心态善恶与否的举证责任大战,其司法操作难度之大,成本之高可想而知.而依物权行为理论来解决物权变动问题,整个过程思路非常清晰,并且在物权变动的每一个环节都有依形式主义原则所要求的公式性行为来体现,并且法律赋予了这些行为以相应的法律效力,那么本着对法律的信任而对这些公式性行为所应具有的法律效力的信任,就是"善意".因此这里的"善意"完全是一种客观标准,是法律赋予的"善意",从而极为有利地保护了第三人的利益,进而保护了交易安全及整个市场交易秩序的良性运作.
由此可见,物权行为理论充分顾及了每一个市场交易主体的利益,并且更加公平、高效地保护了市场交易中每一个主体的利益,以及整个良性交易秩序的形成,思路清晰、逻辑严紧地实现了民法更高层次的正义价值目标.
[Notes]
[1]需要特别说明的是本文在破立结合的基础上借鉴了我国著名民法学者孙宪忠教授的一些观点.
[2]也有认为分离原则系指处分行为与负担原则的分离.参见[德]迪特尔·梅迪库斯著,邵建东译:<<德国民法总论>>,法律出版社2000年11月版,第174页.
[参考文献]
{1}史尚宽物权法论[M]．中国政法大学出版社,2000.21,21,24,24 - 25.
{2}孙宪忠．论物权法[M]．法律出版社,2001.39、163、209、164、163、28
{3}米健．物权抽象原则的法理探源与实现斟酌[J]．比较法研究,2001,(2:44.
{4}谢在全．民法物权·上册[M]．中国政法大学出版社,1999.70,71,71,第68页及注释1.
{5}寇志新．民法学[M]．陕西人民出版社,1998.329,330.
{6}王泽鉴,民法物权·第1册[M]．中国政法大学出版社,2000.88,85,87,86,79.
{7}王利明．物权法论[M]．中国政法大学出版社,1998.47.
{8}中国物权法研究课题组．中国物权法草案建议稿:条文、说明、理由与参考立法例[M]．社会科学文献出版社,2000.112.
{9}孙宪忠．物权行为理论探源及其意义[J]．法学研究,1996,(3,孙宪忠．德国当代物权法[M]．法律出版社,1997.62.
{10}[德]K-茨威格特,H·克茨．比较法总论·第15章"抽象物权契约理论—德意志法系的特征[A]．孙宪忠译．外国法译评(M]1995,(2 :25.
{11}陈华彬．论德国私法上无因概念的形成[A]．民商法论丛183;14卷[C].351.
{12}王泽鉴．民法学说与判例研究·第5册[M]．中国政法大学出版社,1998.138.
{13}郑冲,贾红梅译．德国民法典[M]．法律出版社,2001.215.
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1. Position of the principle of separation
Property Act to constitute a theoretical system point of view, the essential problem is to change the legal effect of real right property behavior of phase separation behavior and claims that the solution behavior of the objectivity of the independent property rights issues (academics this issue to have discussed, and not focus of this paper, the author in his article devoted to the problem. Only claims first acts of behavior and separation of property, we can further explore the legal effect of changes in property rights, property rights acts, acts which the creditor the relationship between the problems, so the principle of separation of property act theory method constitutes the starting point for technical design.
2. The concept of separation of
To the concept of separation of terms, Germany and most of mainland scholar in Taiwan and no matter how we express in the text, and its real meaning is more clear, consistent, that is, acts of property claims between behavior and separation of independent existence, and are constitute an independent legal action [2]. For example, Mr. Xie Zaiquan Taiwan scholars talk about the independence of Property Act that: "Property Claims behavior behavior and separated from each other, act independently of the claims, the independent acts of what we called the property sex. "{4} Mr. Shi Shangkuan stated as:" only on the relationship between the person requesting credit contract, and direct changes of biological property rights contract, utterly different. "{1} Edited by Professor Kou Zhi <<civil law Science>> South Korea Professor Song said: "Right to a change in the form of contract cases, contract claims contracts and property rights are two different legal acts, creditor behavior and property behavior completely separate, independent, this matter claims the right to act independently of the characteristics of behavior, that the independence of the Property Act. "{5} Therefore, the principle of separation of property may be brief, separation of behavior and creditor behavior. Wangze Jian {6} {7} Wang Liming and other scholars expressed the same with these statements.
3. In our understanding of the principle of separation problems in the academic
However, the meaning of separation of understanding and expression had to be very clear, however, scholars in China are different in different parts of the separation of the different statements to become blurred.
First, my eminent scholars of the field of property law in 1996, Professor Sun Xianzhong 3 <<Law Research "> on a piece called" <Property Act Theory Origin and Meaning>> articles and his monograph <"German Contemporary Property Law" > in respect of the "separation principle" made the same statement, he pointed out that "the meaning of the principle of separation is the main German law the right to transfer the delivery of the subject matter of legal obligation (usually debt or contract law called the contract with complete change in the behavior of a variety of property as two legal acts, not a legal act, the former acts as the cause, the latter property acts. because these two acts have their own intention and the establishment of an independent way, so They are two different separate legal fact. "Here, we can see that Professor Sun shall be referred to the principle of separation of property and creditor behavior of phase separation behavior of each other as independent legal principles.
But then, in 1999, Professor Sun No. 5 <<Law Research "> on a piece called" <Right Change the distinction between cause and Policy "> the article that" the so-called principle of distinction, that in the event of property changes when the property changes and the reasons for the results of property changes the fact that the two laws, the establishment of their entry into force of the legal basis according to different principles. This principle comes from the German civil law, the German Law 'Trennugsprinzip', or said the principle of separation. "Thus, where the principle of separation within the meaning of Professor Sun is the property but the causes and consequences of changes in the principle of separating. Academy of Social Sciences <" China Property Law "Proposal Draft> Article 7 on the Right behavior changes and the reasons for the principle of a distinction pointed out: "to place the reasons for the purpose of property changes behavior, since the entry into force of the legal establishment. In the results of property changes can not occur when the party at fault shall be liable for breach of contract." In the notes on the article also made a further explanation: "to place the reasons for the purpose of property changes behavior, mainly contract, it belongs to the scope of claims French relations, the establishment of effective law claims based on contract law. "{8} The reason for the existence of independent acts of behavior outside the property has not been mentioned.
Therefore, National Taiwan University Professor Wang Zejian in its <<property law on the freedom and the "Limitations> an article about the draft, said:" The so-called 'Right Change and its causes behavioral principle of distinction,' Department of the Chinese draft law that pioneered the concept of ... ... should be noted that the draft property law in China so-called 'property changes its behavior because the principle of distinction', it seems different from Germany, Switzerland, Taiwan law the so-called 'principle of distinction,' or 'separation principle'. I usually understood by the German law the so-called While affirming the principle of separation is present in the burden of an independent action (claims actions, causes other than acts of Property Act, the distinction or separation of property changes and the reasons are not only act, but the property caused by changes in behavior and property cause of behavior. "
Therefore the principle of separation of two different contents, regardless of the Theoretical System of Property Act, or legislation for the guidance system of property law may have different effects. In accordance with the principles of the former, then the behavior is bound to have a separate property, so that the material the right to act with independence, and in accordance with the principles of the latter, it might act as a debt the property changes the legal effect, and thus can not recognize the independent existence of Property Act. However, the property acts as a scientific theoretical system construction of the scientific meaning of the principle of separation of property rights should be separated from behavior and the principle of creditor actions, this principle is also the whole system of property law act theory the starting point for technical design.
(B abstract principle (the principle of non-sexual act theory is the property core Technology design method
Abstract principles is the German "Abstraktionsprinzip" the Chinese translation, some scholars have to paraphrase as "without cause" {1} or "because of the principle of" {6}. Needs to be emphasized at this point is "no result" and is not no reason, but to show that the relationship between and the reasons therefore should be more accurate paraphrase, "not to let the principle of" or "Do not because of." article that should be used "abstract principle" is appropriate because it not prevent people from understanding the content of that principle, can be taken to avoid the "no result" of the reference to the misunderstanding. but in the text refer to the views of different scholars still use their habit of saying when.
1. The status of abstract principles
Property Act to constitute a theoretical system perspective, recognition of an independent objective existence of Property Act, which recognize the property rights of phase separation behavior and creditor behavior, their actions are an independent legal separation principle is the theory for the Property Act system, the starting point for technical design method. So on this basis, followed by a question is the legal effect of changes in property rights, property rights acts, creditor relationship between behavior of the three in the end? abstract principle is precisely the answer to this question and the conclusions reached. so abstract principle is the prerequisite for understanding the principle of separation, both of which have close ties, although just from the logic point of view, recognition of the principle of separation does not necessarily lead to an abstract principle must be recognized, but from the material theoretical system of the right to conduct constitutes the spirit and purport of the theory point of view, the abstract principles of science to solve the three relationships, and this is real right act theory for the legislative, judicial and the establishment of a safe, fair, and efficient market transactions The major significance of the order, it is also the essence of the Theory of Property Act. Therefore, whether the abstract principles of behavior theory in the system constitutes property, or in the law are among the core technical design status.
2. The concept of abstract principles and analysis of existing statements
Recognition of property claims in the behavior and phase separation behavior, are a separate legal act on the basis of the separation principle, acts of Property Act and claims there is bound to show the following three states: one is the only behavior but no property claims behavior, such as the appointment, employment, etc., and the second act is the only property without the creditor behavior, such as ownership of the abandoned, the third is the coexistence of Property Act credit behavior, such as trade, reciprocity and so on. The behavior and properties in the claims behavior of co-existence of the right to state an objective in terms of their effectiveness, can be divided into four cases, namely: First, conduct credit behavior and the establishment of effective property rights, this situation is normal social life, it is not For example, the second is behavior and Property Act claims are unsubstantiated or invalid, for example, one party is no capacity for civil conduct and the third is the establishment of effective credit behavior, but behavior is not established or invalid property, for example, the contract (the establishment of effective credit behavior After the party due to mental disorders and a person without legal capacity, but was delivered (Property Act the subject matter, in this case the property null and void (actors, not law, transfer of ownership of the object does not occur, Fourth, claims act does not hold, invalid or revoked, but the establishment of an effective Property Act, for example, claims the subject matter of the contract after the delivery but was withdrawn or declared invalid. then the Property Act should be based on abstract principles of behavior and property the case of co-existence of debt behavior, and to the establishment of Property Act is the prerequisite for effective. As Professor Wang Zejian said: "Real Rights and the Application of theory to property established as a prerequisite for effective action itself, if the property the act itself does not hold, do not take effect, revoked or invalid, the fundamental problem does not occur without reason. "{6}
Expression to the concept of abstract principles, the scholars have different interpretations, and different expressions of different meanings, such as: Professor Wang Zejian said: "No act of sexual property that is not their reason for the effectiveness of behavior (behavior claims about though not established credit behavior, do not take effect, revoked or invalid, the Property Act does not be affected, is still the legal effect of property changes occur. "{6} Professor Xie Zaiquan stated as:" consequent behavior became property claims reasons for behavior. If claims about behavior of the effectiveness of Property Act, then the property due to acts of conduct, there is (there because of doctrine, on the contrary, if the effectiveness of Property Act, not the reason that the impact of debt behavior, the Right conduct, not because of the act (no due to a non-sexual doctrine. Shen words, the claim is invalid or acts of naturalization revocation of vertical, the property is invalid or missing the conduct was not so exist. "{4} in the editor, Professor Kou Zhi The <<Civil Law>> book, Professor Han Song said: "The so-called non-sexual behavior of real right is the legal effect of Property Act as the cause of behavior is not behavior of the claims." {5} Through these means statements, we can see that there are claims of these scholars believe that the existence of acts of the head of the occasion, the initial claims because behavior is behavior of Property Act, but the effectiveness of Property Act is not effective because the impact of behavior, that the effect of their behavior and do not impact, so they are the legal effects of the Property Act claims behavior from "abstract" out.
Yet Mr. Shi Shangkuan Property Act for an abstract principle in the statement held that: "Property Act claims based on the reasons for action, for the performance of acts, before the problem occurred there because of uncaused. That was mourning the changes in property rights for the reasons between the Left and Right, that there is a result of the doctrine. does not of course be about the reasons for those relations, it means that no result of doctrine, also known as the property of non-sexual. any property in accordance with changes in the legal act, must have its reasons. For example, the transfer of land ownership, the reason was for the sale and purchase behavior, gift or reciprocity. "{1} Professor Sun Xianzhong in 1996, when expression of abstract principles, that:" the meaning of abstract principles, referring to Property Act and results in their effectiveness behavior does not depend on the reasons for the establishment of independent, that is invalid or revoked because acts can not lead to the fulfillment of material behavior, of course null and void and revoked. "{9} At this point Professor Sun is basically consistent with the first view, but has Property Act referred to the reasons for the results and the relationship between the so-called relationship. Professor Sun in 2001 an essay entitled "<talk about Real behavior theory>> The article states:" abstract principle, that is, the so-called non-legal circles in China because of the principle, that property changes from the constraints of its reasons for the effectiveness of the principle of behavior. Because changes in the property, the property directly from the change in property rights between the parties independent of the meaning, not the meaning of claims, so the results of property changes meaning is not directly affected by credit constraints. "{2} In these expressions, we can see, Mr. Shi Shangkuan conduct, though that property rights act claims because behavior, but he was non-sexual means that the legal consequences of Property Act - Right of mourning have changed about behavior without reason, therefore he is to the legal consequences of the behavior of thing causes behavior from the "abstract" out.
Professor Sun in 2001 from the abstract interpretation of the principles expressed in the second half, we can clearly see that the property he should change the property agreement between the parties constitutes a direct causal relationship between changes in property not subject to claims Relations, but he has the concept of the first half of the statements, in the absence of "cause behavior" to make any explanation of the circumstances, pointed out: "Real change in behavior is not the reason the effectiveness of constraint", where "the reasons for behavior" in the end is the reason property changes behavior, or acts of behavior of real right reasons, and based on his statements should be understood as a property perspective the reasons for changes in behavior. So, immediately produced a misleading questioned by some scholars and challenging issues, namely: "If property changes are not the reasons for the effectiveness of behavior constraints, and property rights agreement (the Property acts constitute the direct cause of property changes, so the property changes from a desired property (the effectiveness of Property Act constraints. "and this inference is clearly inconsistent with the basic theory of Property Act. creditor relations here are not given any expression.
3. Presentation on the concepts of abstract principles
The concept of abstract principles in order to have a clear understanding and scientifically interpreting evidence, based on the premise of the above analysis, we must first clear a few questions.
One problem: "the effectiveness of Property Act" and the "Right Change" (or "property of the funeral may change the" relationship? Between the two is the same meaning? In both types of concept statements, we can find key difference is that the former is the "effectiveness of Property Act," abstracts from the creditor behavior, whereas the latter "Right Change" behavior from the abstract claims. This paper argues that "the effectiveness of Property Act" and " Right Change "is not the same thing, with a different meaning," the effectiveness of Property Act "is to the legal status of property in terms of the act itself, it refers only to property in itself act as a legal concept in the next bit of the law effectiveness of the state is "effective" or "invalid" about, or "pending." and "Real Change" is on the property in terms of the legal consequences of acts, it refers to itself arising out of acts of effective property rights the legal consequences, namely, "property of the funeral was changed." Thus, the concept of an abstract representation of the principle of "the effectiveness of Property Act" and the "Right Change" must not be understood as synonymous. However, due to Property Act "effective" or "invalid" about, or "Pending", that is, the effectiveness of state Property Act of the corresponding content is "Right Change" or "property does not change", that Property Act the legal effect of the legal acts of state and property results in the content or meaning of consistency. but in the strict, scientific concepts, or statements to make to distinguish between the two, and use accurate, because, "Property the legal effect of acts of state "and" the laws of the results of Property Act, "strictly speaking are two levels of questions, definition statements are standardized terminology, accuracy is directly related to understanding of the definition of the concept and the related theory is accurate is tight in logic, but also to the exclusion of other scholars on the Theory of Property Act Doubts.
Second problem: the behavior and claims the case of the coexistence of Property Act, property changes throughout the course of so-called "relationship reasons", "cause behavior", "reason" and other words, they mean how in the end? Performance? Due to the different scholars on this point presentation and understanding of different, making misunderstandings in some situations, and become those who do not recognize the property rights theory of criticism is based on behavior. For this I believe:
First, changes in property and property behavior (look at the relationship between the desired property, property changes, the property may lose changes of behavior by the Property (the Property caused by the agreement, Behavior and Property Right logical changes constitute a direct "causal relationship", or so-called "direct cause of changes in property rights," and in this relationship, both in the subjective purpose of Property Act, or in the objective legal effect, have a direct point property changes, so in this session, and did not take the abstract principles of law the use of Technology.
[1] does not, of course there are links in the logic of causality, but in normal circumstances claims constitutes a motivation for acts of Property Act (the pass that causes behavior.
[2] is itself part of the objective logic of causality, property behavior is the direct cause of property changes.
Based on the above analysis and to clarify two issues, made clear: First, "the legal effect of acts of state property" and "the laws of the results of Property Act," although the content is consistent, but depending on the precise definition of the concept and logic strict requirements, you should use "the effectiveness of Property Act" and the second, the whole process of change in the property, the "cause of behavior," the title refers specifically to "credit behavior", but "the direct cause of changes in property" is Property Act refers to "the direct cause of changes in property rights" and "cause behavior" have different meanings, and because the abstract principles of law to apply the existing techniques [1] only shows the part of creditor behavior and effect relationship between the Property Act problems, but also did not relate to the [2] Property Act as the legal aspects of the results of property changes, coupled with the principle of separation itself is the property separation behavior and claims act, therefore, the concept of property rights principle of behavioral science theory of abstract statement should be: the process of property changes in behavior and property behavior of the coexistence of the case debt, property not subject to the legal effect of acts of Property Act as the cause of behavior (actions or motives influence the effectiveness of claims act, is material abstract principles of right behavior.
4. The meaning of abstract principles
Abstract principles involved in transfer of property, acts as a cause of behavior and its relationship between the means of technical processing method has been widely used in a number of property system, in addition to the field of Property Law Property Act, the German Civil Law in the areas of claims claims for and the debt burden, the field of commercial law in the Negotiable Instruments Law Bills in both conduct and other systems the Application of abstract principles. is because the abstract principles of civil law in Germany has been widely used, and this law techniques and shows that the German nation abstract conceptual thinking preference, so the abstract principles of behavior of real right referred to as "typical of the Department of Germany and France," {10} or "German private law concept of a basic law principles of law" {11}.
The practical significance of abstract principles, the main security is to protect the transaction (which is not the focus of this paper, I will be in his article focuses on. In summary, the abstract principles of behavior theory constitutes the entire property law technical design core.
(The principle of the three forms of behavioral theory of property law is the protection of the technical design
The essential attribute of the property is that it is a world power, absolute power, with the exclusion of the property, property rights behavior and claims the biggest difference is that the behavior of rational behavior of real right for the material on the basis of the will and the will of the main body of the combination of external , and the legal effect of this combination is the property directly to change is a right of disposition. therefore the starting point for property changes, the end and the whole process of property changes are on the subject matter outside the will and the will of the The combination of. Here, the so-called "outside the will" of the request "because the objects of the desired behavior but the delivery of materials that exist in the abstract meaning of that, there must be a formula to express sexual behavior or agreement is recorded in this matter, "{12}. and this act of publicity in terms of the personal property is delivered, in real terms is the registration, namely, the requirements of the principle of formalism.
I. The principle of status form
Property Act as the principle of separation to make claims to act independently of the existence of such an independent existence is independent of the meaning of relying on the property based on the objective existence of abstract principles to the legal effect of the behavior of thing the legal effects of acts from the claims in the abstract, this abstract is the meaning of relying on the legal effect of the independent property and claims of the legal effect of the meaning based on different, and in this distinction between the different meaning and different meaning to the legal effect of the analysis is As a means of analysis of the behavior of the carrier and as the starting point, that is characterized by different meanings of the content analysis to uncover the different behavior of different behaviors mean and mean effect of the law, meaning and behavior that constitutes the content and form logic relationship, the two will not separable. then the theoretical system of behavior constitutes a property perspective, formalism, the content of the principle of separation of the principles and requirements make the implication of abstract principles, different laws have different legal effects mean, give rise to different legal between the different legal systems apply the basic ideas can have a cognitive form, legal theory and to related construction and operation of legal practice has the possibility. because all the meaning and effect to achieve its Suoyu , must be completed with the expression of behavior, so "Real Rights, Department of independence and non-sexual forms of behavior from the property doctrine" {4} The principle form of behavior constitutes a theoretical system of property laws designed to protect technology , constitutes an essential property of behavioral content of the theoretical system, and our behavior theory scholars talk about the content of property rights often constitute the only principle of separation (or the principle of independence and abstract principles (or principles of non-sexual expression and analysis, while ignoring the principle of formalism.
2. The principle of the analysis of form
The principle forms the basic meaning of place is wanting to change the property means property, must be a combination of objective behavior of publicity, before property changes occur. Here's the formula for the delivery of sex in terms of movable property, immovable and made for the registration. So then came the problem is that, due to the different understanding of the concept of Property Act, scholars, and registration for the property on the delivery of the composition acts have different understanding. Some scholars believe that the meaning of that property (including property Property rights is the desired behavior of their own (individual behavior and property deeds, registration or delivery of the effective elements of its {6}. Some scholars believe that changes in property rights act must be the meaning of property rights and registration act or delivery of the combination of { 4}. In essence, the issues involved in the delivery of Property Act and Registration in the end is the establishment of special elements, or elements of Property Act the special effect. The former judge is a fact, it solves the existence of a Property Act problem, which is a legal judgments, it addresses the effect is a matter of Property Act, although both the legal effect of its real purpose will lead to a lack of elements, is the legal property changes can not happen effect, but to find out the problem on the very concept of Property Act and the Property Act system of scientific theory building but has a very great significance. This paper argues that as the delivery of public notice and registration of sex acts should be set up as a property element, Property Act and the simultaneous establishment of the effect on property law, namely the establishment and effective only in time with the same time he does. The reason is: both the delivery and registration of property rights implied in the act is the legal meaning of property rights changes in behavior if not the delivery of movable property and real estate registration act, then the parties from the property means no knowledge, no test, the legal effect of property changes can not occur, and act before the completion of delivery of movables and real estate registration act before the meaning of the parties do not fall on the meaning of the Property Law said. Property and characterization of the meaning of the meaning of a particular behavior is the relationship between content and form, the two can not be separated, meaning the behavior is not the lack of property Property Act, naturally, not effect on the occurrence of property law, not act as a representation of a particular meaning, we simply can never know the meaning, let alone understand the meaning of Suoyu the legal effect of the problem. Therefore, the delivery and first registration of Property Act elements of the special set up, no delivery and registration of property rights do not exist acts will act, and thus can not understanding the so-called "property rights mean" the precise content. Second, because there is no delivery and registration of Property Act does not exist, Therefore, not to mention the legal effect of property changes. In particular, point out that this need is the delivery of movable property behavior easier to understand, however, act on the registration of real estate terms, in the "" German Civil Code>> Article 873 2 there is such a provision: "In the pre-registration, the parties were both in the meaning of that notary public, or the Land Registry to make or present intention, or who has the right to meet the <" Land Register Act >> Registration permit required to deliver on the relative person, before bound by the agreement. "{13} for the provision of content, some scholars said:" These acts may also explain, meaning the party with this property changes. In Under such circumstances, the parties will effect the meaning of property changes, it will be bound by the law. "{2} Therefore in this desire that is sometimes outside of the delivery and registration of property rights there are also independent of the meaning, and also effect on the occurrence of property law. I think that this understanding and explain the contents of a defective, because the provision does not deny the existence of registration, the legal effect of changes in the incidence of property is still based on the premise registration, pre-registration party The implied meaning of behavior is not worth the property to determine the meaning. It contains a logical relationship between the front and rear, while the provisions "in the pre-registration" has the qualification to the logic here is more clearly expressed was. Therefore, I believe the meaning of the provision should be: the party making the provisions set forth in the acts of any one of the three after the change of registration must be further acts, then the law will change the registration of acts of force with the premise of the Property Law to the parties in the three acts under the provisions of the moment, it will be registered only by the provisions of the legal effect of the time with the premise of it, does not give other acts to the meaning and effect of Property Act, also did not denied registration by the behavior of the property should have the force and legal effect, because if you want to explain the basis of this provision in addition to the delivery and registration of property rights there are other forms of meaning, then followed by a question difficult to justify itself, that is, acts of the parties carrying out the above do not make changes after registration has been the behavior, so they know how to determine the behavior of the three parties during the existence of separate property to mean? the above acts would, of course to occurrence of property (land the right to change the legal effect? Therefore, delivery and registration of these two formulas sexual behavior has set up as a property element, the first objective is to understand the existence of Property Act, confirm the behavior of property and creditor behavior independent of the separation principle, followed by the behavior of thing is to understand the force of law and property rights in the act of carrying the meaning can not be separated. This is the true meaning of the principle of formalism, and only for the protection of this and build up the Property Act theory is a logical and scientific theoretical system.
(D Summary
Foregoing analysis, the principle of separation means to separate the existence of property as a starting point to solve the objective existence of Property Act, and make the phase separation behavior and claims, the abstract meaning of the principle of an independent property rights and the meaning of legal claims Effects of different means for the entry point to address the legal effect of property on the first act, then the result was of course to include legal relationship with the creditor behavior problems, and the principle of formalism is not from the separation of content and form as the starting point, making expressed by the above two principles the content of the anchor with a logical, and so they have a form that can be cognitive. Therefore, both in content and form, or in the Technology Application, the Property Act is the theoretical system based on the principle of separation of the starting point for technical design method to abstract principles of law for the technical design of the core, the principle of formalism for its technical design protection law, and each principle has its accurate, the only definition, On this basis, the formation of a complete system, logical and scientific theoretical system.
Third, the Property Act system of scientific theory construction of theoretical and practical significance
Behavior and theory of property rights system, and scientific, clear, clear understanding of, both from a theoretical sense, perfect for the civil law theory, practical sense, or from the specific design of the system to protect the orderly market economic order operations are of great significance.
(A general civil code, property rights theory of behavioral theory to make systematic, perfect
Theory of Property Act simply by the sense of a logical order to understand that the autonomy of private law are the basic principles of civil law, the legal implication of the value of their primary means of legal action is to be achieved. Therefore constitute a legal theory The main contents of the General Principles of Civil Law, and is the essence of the civil law system, the most brilliant and bright spot, then the legal theory must be in all parts of civil law are embodied in the content, if you do not recognize the property as a theoretical system of behavior and the law行为之下位概念的存在,那么法律行为概念及其理论则在民法主要内容之一的物权法部分缺失了,从而使得对法律行为概念的抽象以及将其作为民法总则之主体内容都成为不可能.因此正是物权行为的客观性及其理论体系的完善化,才使得法律行为理论及由法律行为所引起的法律关系理论都成为了民法总则中科学的理论体系,从而使民法总则理论科学化、完善化,并最终构建起了一个科学严密、博大精深的民法理论体系.
(二物权行为理论更能够保障交易安全,促进市场交易秩序的良性运作
民法作为商品经济一般规律之反映,应当具有维持与促进正常商品经济秩序形成与运作之功能,而作为商品经济发达阶段的现代市场经济的形成与发展,民法的这一功能将表现得更为巨大,因此,在进行民法理论探讨以及相关制度设计时就必须考虑到这一点.而对于物权行为理论而言,其实践意义之巨就在于保障交易安全,促进正常交易秩序的形成与有序运作,因为在物权变动时,由于物权之排他属性,势必会在物权变动中不仅影响到交易当事人的利益,还会影响到第三人的利益,从而影响到整个交易秩序的稳定."第三人利益实际上正是市场经济交易秩序的化身,社会整体的正常经济秩序就是由一个个第三人连接起来的".{2}因此在物权变动中如何平衡好物权变动当事人的利益和第三人的利益,则直接关系到市场交易安全、公正、效率等价值目标的实现.
首先,对出卖人(原权利人而言,当买卖契约不成立,因意思表示错误被撤销,或违反公序良俗无效时,而买受人已将物出卖给第三人,第三人主观恶意时,出卖人无法向第三人主张"所有物"返还请求权(物权请求权,而只能向与其有直接法律关系的人提出不当得利返还请求权(债权请求权,这对出卖人似乎不公平.笔者认为法律如采纳严格的物权行为理论体系,尤其是有形式主义原则所具有的公示效力,第三人依该公示之行为支付了相应的对价,并为相应之交易行为,一般而言就无交易上的过错.而原权利人在救济自己的权利时,必须对因自己疏于管理自己的财产而将所谓的"物权请求权"降低为"不当得利请求权",这并无不公平之处.而且原权利人一人之利益与由不特定的多数第三人之利益构成的整个交易秩序而言,孰重孰轻自是一目了然,因此可以说,在这里如果采物权行为理论,则只能说民法就此制度设计而言,在公平与效率的价值选择上略微偏向了效率(此处并非置公平于不顾,而只是价值比较后的主次之分.
其次,就第三人利益而言,在学界向来有依物权行为理论之保护与依善意取得制度之保护的争论,有些学者认为善意取得制度足以保护第三人利益,进而保护交易安全,而且还可以克服所谓"物权行为理论的诸多弊端",故完全可以不采物权行为理论.笔者认为这种观点值得商榷,因为物权行为理论所具有的理性思想及其严密的逻辑体系,较之于善意取得制度更能保护交易安全,倒是善意取得制度的一些缺陷使得在适用该制度时其操作性和成本都问题较多.在此仅简单指出善意取得制度的最大缺陷乃在于善意取得制度中所谓的"善意"纯系一主观心态,并且无客观标准衡量,更为重要的是它将第三人所谓"善意"举证责任的"包袱"抛给第三人自己,即第三人必须证明自己存在着一个没有公共客观标准的主观"善意",紧随其后的问题就是由于这个"善意"没有客观标准,原权利人及其他人可能又举出第三人主观"恶意"的证据来,最终将产生这样一个戏剧性的后果,即本来是为了解决物权变动这一法律问题,而最终却变成了一场为了一个没有客观标准的主观心态善恶与否的举证责任大战,其司法操作难度之大,成本之高可想而知.而依物权行为理论来解决物权变动问题,整个过程思路非常清晰,并且在物权变动的每一个环节都有依形式主义原则所要求的公式性行为来体现,并且法律赋予了这些行为以相应的法律效力,那么本着对法律的信任而对这些公式性行为所应具有的法律效力的信任,就是"善意".因此这里的"善意"完全是一种客观标准,是法律赋予的"善意",从而极为有利地保护了第三人的利益,进而保护了交易安全及整个市场交易秩序的良性运作.
由此可见,物权行为理论充分顾及了每一个市场交易主体的利益,并且更加公平、高效地保护了市场交易中每一个主体的利益,以及整个良性交易秩序的形成,思路清晰、逻辑严紧地实现了民法更高层次的正义价值目标.
[1]需要特别说明的是本文在破立结合的基础上借鉴了我国著名民法学者孙宪忠教授的一些观点.
[2]也有认为分离原则系指处分行为与负担原则的分离.参见[德]迪特尔·梅迪库斯著,邵建东译:<<德国民法总论>>,法律出版社2000年11月版,第174页.
[参考文献]
{1}史尚宽物权法论[M]．中国政法大学出版社,2000.21,21,24,24 - 25.
{2}孙宪忠．论物权法[M]．法律出版社,2001.39、163、209、164、163、28
{3}米健．物权抽象原则的法理探源与实现斟酌[J]．比较法研究,2001,(2:44.
{4}谢在全．民法物权·上册[M]．中国政法大学出版社,1999.70,71,71,第68页及注释1.
{5}寇志新．民法学[M]．陕西人民出版社,1998.329,330.
{6}王泽鉴,民法物权·第1册[M]．中国政法大学出版社,2000.88,85,87,86,79.
{7}王利明．物权法论[M]．中国政法大学出版社,1998.47.
{8}中国物权法研究课题组．中国物权法草案建议稿:条文、说明、理由与参考立法例[M]．社会科学文献出版社,2000.112.
{9}孙宪忠．物权行为理论探源及其意义[J]．法学研究,1996,(3,孙宪忠．德国当代物权法[M]．法律出版社,1997.62.
{10}[德]K-茨威格特,H·克茨．比较法总论·第15章"抽象物权契约理论—德意志法系的特征[A]．孙宪忠译．外国法译评(M]1995,(2 :25.
{11}陈华彬．论德国私法上无因概念的形成[A]．民商法论丛183;14卷[C].351.
{12}王泽鉴．民法学说与判例研究·第5册[M]．中国政法大学出版社,1998.138.
{13}郑冲,贾红梅译．德国民法典[M]．法律出版社,2001.215.
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