论物权法上的权利推定

On Presumption of Rights in Jus Rerem

物权法上的权利推定,是一种举证负担规范,只能于诉讼上发挥减轻证明负担的作用,不能终局性地解决权利归属问题。权利推定与不动产登记簿的公信力、善意取得制度实则发端于同一根源,即占有或不动产登记簿具有彰显物权的机能。由其性质所决定,权利推定必须以物权法上的权利变动规范为根本依据,不动产登记簿的公信力或善意取得制度因此可构成权利推定(力)的基础材料。将推定力看作公信力与善意取得制度的基础或出发点,乃本末倒置之举。

The presumption of rights in jus rerem is a kind of norm allocating the burden of proof. It can only relieve the judge＇s burden of proof in civil lawsuit, and cannot determine the owner of the property at all. The presumption of rights is derived from the same presupposition as bona fide acquisition and public belief of real property register which is that possession or real property register can be regarded as the demonstration of property rights. The presumption of rights shall be based on norms of change of rights according to the attribute of presumption of rights. The public belief of real property register and bona fide acquisition are in fact one of the elements of presumption of rights. It is undoubtedly erroneous that the belief of real property register and bona fide acquisition are the base or start of presumption of rights.