《中华民国民法》物权变动模式研究
发布时间：2019-02-22 16:00
【摘要】：基于合同行为的物权变动是现代社会最常见的物权变动类型和民事法重点规制的对象,所谓的物权变动模式就是指一圈对基于合同行为的物权变动类型进行法律调控的方式。大陆法系国家的物权变动模式分为以法国民法为代表的意思主义模式和以德固民法为代表的形式主义模式,在意思主义模式下物权的变动是当事人双方之间意思表示的结果,体现自由资本主义的精神,后来由于社会法律思想和法律社会化的影响,为保护第三人的利益,保障交易安全,创设出公示制度,将公示作为物权变动的生效要件,这是形式主义模式的价值基础。《德国民法典》作为当时世界上一流的民法典,被标榜“采取后出最精确之法理”立法原则的《中华民国民法》所移植,作者认为,南京国民政府移植德国民法的公示制度,并不是考虑到它保障交易安全的价值,而是把不动产登记视为一种行政手段来掌控不动产的交易,当然更没有看到物权行为理论的历史渊源和背景,一概拿来,结果造成该部法典规定过于超前,缺乏适用的基础,在当时并没有得到很好的适用。这种缺陷值得我们在制定新型民法典时深思,作者将在文章中从三个方面提出自己的思考。
[Abstract]:The change of real right based on contract act is the most common type of real right change in modern society and the object of key regulation of civil law. The so-called mode of real right change refers to the way of legal regulation and control of the change type of real right based on contract act. The modus operandi of real right in civil law countries can be divided into two parts: the intention doctrine mode represented by the French civil law and the formalism mode represented by the de gu civil law. The change of the real right under the intention doctrine mode is the result of the expression of the will between the two parties. Reflecting the spirit of free capitalism, due to the influence of social and legal ideology and legal socialization, in order to protect the interests of the third party, to protect the security of transactions, to create a system of publicity, publicity as the effective requirements of real right change. This is the value foundation of formalism. As the first class civil code in the world at that time, the German Civil Code was transplanted by the Republic of China Civil Law, which proclaimed the legislative principle of "adopting the most accurate legal principle". The Nanjing National Government transplanted the public notice system of German civil law not to consider its value of ensuring the security of transactions, but to regard the registration of real estate as an administrative means to control the transaction of real estate. Of course, there is no historical origin and background of the theory of juristic act of real right. The result is that the provisions of the Ministry Code are too advanced and lack the basis of application, which was not well applied at that time. This defect is worth pondering when we make the new civil code, the author will put forward his own thinking from three aspects in the article.
【学位授予单位】：郑州大学
【学位级别】：硕士
【学位授予年份】：2011
【分类号】：D923;D929
本文编号：2428380
[Abstract]:The change of real right based on contract act is the most common type of real right change in modern society and the object of key regulation of civil law. The so-called mode of real right change refers to the way of legal regulation and control of the change type of real right based on contract act. The modus operandi of real right in civil law countries can be divided into two parts: the intention doctrine mode represented by the French civil law and the formalism mode represented by the de gu civil law. The change of the real right under the intention doctrine mode is the result of the expression of the will between the two parties. Reflecting the spirit of free capitalism, due to the influence of social and legal ideology and legal socialization, in order to protect the interests of the third party, to protect the security of transactions, to create a system of publicity, publicity as the effective requirements of real right change. This is the value foundation of formalism. As the first class civil code in the world at that time, the German Civil Code was transplanted by the Republic of China Civil Law, which proclaimed the legislative principle of "adopting the most accurate legal principle". The Nanjing National Government transplanted the public notice system of German civil law not to consider its value of ensuring the security of transactions, but to regard the registration of real estate as an administrative means to control the transaction of real estate. Of course, there is no historical origin and background of the theory of juristic act of real right. The result is that the provisions of the Ministry Code are too advanced and lack the basis of application, which was not well applied at that time. This defect is worth pondering when we make the new civil code, the author will put forward his own thinking from three aspects in the article.
【学位授予单位】：郑州大学
【学位级别】：硕士
【学位授予年份】：2011
【分类号】：D923;D929
【参考文献】
相关期刊论文 前2条
1 孙宪忠;“抽象物权契约”理论──德意志法系的特征[J];外国法译评;1995年02期
2 孟文理;曾见;;20世纪的中国法制建设和发展[J];中德法学论坛;2003年00期
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