机动车所有权变动模式研究

发布时间：2018-11-22 13:51

【摘要】：近现代民法依据物的物理属性将财产分为动产与不动产,并赋予其不同的物权表征方式与物权变动模式。在除物理属性的考量外,该种分类方法还隐藏着这样一种价值判断,即相较于动产而言,不动产的经济价值较大,且在很多情况下还关乎着民事主体的基本生存权利,应慎重对待。这就不难理解各国民法在物理标准之外把价值因素作为划分动产与不动产的补充标准,例外性地赋予某些动产特殊的法律属性,船舶、航空器即为此例。机动车属于典型的动产,但由于其具有不同于一般动产的"身份唯一性",因而存在登记的可能性。机动车登记行为在《物权法》通过之前业已存在,道路交通安全领域的相关法律法规均明确规定未经登记的机动车不得上路行驶,这是出于对机动车进行行政管理的需要,并不具任何物权法上的意义。伴随着《物权法》的出台,首次将机动车纳入到特殊动产的范围中来,赋予其与船舶、航空器相同的物权法律地位,此即《物权法》第24条。《物权法》第24条并不是一条完整性的法律规范,这就导致理论界对于机动车所有权变动方式存在不同观点,争论的焦点即在于因法律行为导致的机动车所有权变动其生效要件与对抗要件的具体内涵,对此学者所持观点可主要概括为"合同生效+登记对抗"与"交付生效+登记对抗"两种,二者之间的分歧即在于机动车所有权变动的生效要件是机动车所有权转移合意抑或是转移机动车占有。通过对《物权法》第24条规定的进一步解读可知,我国机动车所有权转移方式系"交付生效+登记对抗",交付是机动车所有权变动的生效要件。但与一般动产所有权变动方式不同的是,交付仅能够在当事人之间发生机动车所有权变动的效力,唯有完成所有权转移登记方能对第三人产生对抗力,否则第三人可以主张在先物权变动对自己不生效力。对于未经登记不得对抗的第三人范围,客观上是与在先受让人就同一机动车存在竞争关系的第三人,一般债权人不得以未完成过户登记为由主张在先机动车交易对自己不生法律效力。在主观方面,第三人主观上以善意且不存在重大过失为限。此外,第三人得以信赖的内容系消极信赖。由于两种公示方式同时存在于机动车所有权变动之上,并且过户登记并非当事人必须履行的义务,因此会发生在同一机动车交易行为中交付与登记分属于不同民事主体的现象,此时厘清何者具有优先效力成为处理其他相关法律关系的前提。对此,我国《侵权责任法》第50条以及《最高人民法院关于审理买卖合同纠纷案件适用法律问题的解释》第10条均认为交付具有优先于登记的效力,即在同一机动车之上既存在受领交付的民事主体又存在完成转移登记的民事主体时,法律承认受领交付的民事主体享有该机动车所有权。就《物权法》第24条形式逻辑上而言,交付具有优先于登记的效力。然而,这种形式逻辑的演绎却在无形中造成了重交付、轻登记的结果,这与《物权法》将机动车视为特殊动产并引入登记制度的初衷相背离,导致所有权权变动领域的机动车登记基本处于被虚置状态,并且增加了机动车交通事故中被侵权人的救济成本。在处理交付与登记的冲突关系时,不应拘泥于形式逻辑的演绎,而应从《物权法》第24条的立法目的出发,保护完成机动车登记的民事主体所享有的登记利益。即在登记与交付发生冲突时选择登记优于交付的处理规则,从而倒逼交易主体进行机动车转移登记,提高登记簿权利表征的正确率。此外,也可借助《民法典》的立法契机,彻底改变当前混合式的机动车所有权转移方式,采纳交付生效或者登记生效的所有权变动模式,以结束机动车所有者与登记簿主体二者之间名实不符的状态。
[Abstract]:In the modern civil law, the physical property of the property divides the property into the movable property and the real property, and gives the different property right representation mode and the real right change mode. In addition to the consideration of the physical property, the classification method also hides the value judgment, that is, the economic value of the real estate is large compared with the movable property, and in many cases it also relates to the basic living right of the civil subject and should be treated with caution. It is not difficult to understand that the civil law of the country, in addition to the physical standard, regards the value factor as the supplementary standard for dividing the movable property and the real property, with the exception of the special legal attribute of the movable property, and the ship and the aircraft are the case. A motor vehicle belongs to a typical movable property, but there is a possibility of a registration because it has a different "identity and uniqueness" than the general movable property. The registration behavior of motor vehicle has existed before the passing of the Property Law. The relevant laws and regulations in the field of road traffic safety clearly specify that the unregistered motor vehicle is not allowed to travel on the road, which is the need of the administrative management of the motor vehicle, and is not of any significance in the property law. With the introduction of the Property Law, the first time the motor vehicle is incorporated into the scope of the special movable property, it is endowed with the same legal status as the ship and the aircraft, that is, the Property Law> Article 24. The Law of Property Law> Article 24 is not an integral legal norm, which leads to different views on the way of the change of the ownership of the motor vehicle, and the focus of the debate is the specific connotation of the change of the ownership of the motor vehicle caused by the legal act and the requirements of the countermeasures. The view of this scholar can be summarized as the "Contract entry into force + registration counter" and the "Delivery effective + registration counter", and the difference between the two is that the effective element of the change of the ownership of the motor vehicle is the transfer of ownership of the motor vehicle or the transfer of the possession of the motor vehicle. It is clear from the further explanation provided in Article 24 of the Property Law, the "Delivery effective + registration counter" and delivery of the motor vehicle ownership transfer system is the effective element of the change of the ownership of the motor vehicle. However, in contrast to the change of the ownership of the general movable property, the delivery can only be effective in the movement of the ownership of the motor vehicle between the parties, and the third party can claim that the change of the first real right does not enter into force with respect to the third person only if the ownership transfer registration party is able to generate an opposing force against the third person. In the third person's scope without registration, objective is the third person in which the first assignee has a competitive relationship with the same motor vehicle, and the general creditor shall not be registered as the third person in which the same motor vehicle is in a competitive relationship with the prior assignee, and the general creditor shall not be registered as the first motor vehicle transaction to have no legal effect on the first motor vehicle transaction. in that subjective aspect, the third person is subjectively in good faith and with no gross negligence. In addition, the content of the third person's reliance is a negative reliance. Due to the fact that the two publicity methods exist on the change of the ownership of the motor vehicle at the same time, and the transfer registration is not the obligation to be performed by the parties, the phenomenon that the delivery and the registration in the same motor vehicle transaction behavior belong to different civil subjects can occur, At this time, it is the premise that the priority effect of the matter is to deal with other relevant legal relations. In this regard, Article 50 of the Law on the Liability of Tort in China and the Interpretation of the Law of the Supreme People's Court on the Law Applicable to the Trial of the Dispute of the Purchase and Sales Contract shall be deemed to have the effect of giving priority to the registration, That is, on the same motor vehicle, there are both the civil subject and the civil subject in which the transfer registration has been completed, and the law recognizes the ownership of the motor vehicle by the civil subject who is subject to the delivery. In terms of the formal logic of the Property Law> Article 24, the delivery has the effect of giving priority to the registration. However, the deduction of the formal logic results in the result of re-delivery and light registration in the form of no form, which is contrary to the original intention of the property right law to view the motor vehicle as a special movable property and to introduce the registration system, which leads to the fact that the registration of the motor vehicle in the field of ownership rights change is basically in a virtual state, and the relief cost of the infringed party in the traffic accident of the motor vehicle is increased. In dealing with the conflict relation between delivery and registration, it should not be restricted to the deduction of formal logic, but the registration benefits enjoyed by the civil subject who have completed the registration of the motor vehicle should be protected from the legislative purpose of the Property Law> Article 24. that is, when the registration and delivery conflict, the registration is better than the delivery processing rule, so that the transaction main body is forced to carry out vehicle transfer registration, and the accuracy rate of the register right characterization is improved. In addition, with the adoption of the legislative opportunity of the Civil Code, the current hybrid mode of ownership transfer of the motor vehicle can be completely changed, and the change pattern of the ownership of the vehicle owner and the main body of the register can be concluded by adopting the change mode of the ownership change in which the vehicle owner and the register body are in effect.
【学位授予单位】：安徽大学
【学位级别】：硕士
【学位授予年份】：2017
【分类号】：D923.2

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