物权行为理论辩析

An Analysis of Real Conduct Theory

物权行为是交易双方基于变动物权的合意,以交付或登记为表现形式的民事行为,它具有物权变动同时消灭相关债权的效力;整个交易过程中双方都有权作出相应的意思表示,物权合意是完成交易的最终的意思表示;物权行为的独立性源于其不同于债权行为的法律效力,选择履约与否的自由和正当性决定了物权行为独立性的本质,否定物权行为的独立性就是否定交易双方在特定情形下毁约的权利;物权行为的无因性是其独立性的合理延伸,交易双方的利益并不会因之而失衡,认为无因性会损害出卖人的利益的看法是片面的。

Real conduct is a kind of civil conduct based on the consensus in idem of real transfer between the par- ties.Real conduct shows as delivery and real registration,which have the efficacy of real transfer and extermination of the relative obligation.It's a proper right for each party to express proper intention through out the whole transaction.Con- sensus in idem of real registration is the final statement of intention,which bring to the transaction an end.The real con- duct has independency because of its special efficacy different from contract conduct.The essence of its independency consist in the freedom and fairness of the selection as to comply with the contract or not.Negation of the independency means deprivation of the proper right for both parties to breach the contract when necessary while undertake adequate remedy.Abstraction of real conduct is the reasonable inference of independency.It's a bias to allege that vendor's bene- fit is likely to be damaged just because of abstraction.