权利表见理论及其法哲学基础

Theory of Appearance of Right and Its Jurisprudential Foundation

权利表见理论指在交易关系中凡是能够识别为典型的权利、意思或主体资格等的表征形式,且当该表征形式与交易本来的真实状况不相符合时,法律为保护交易相对人对表征的信赖以及交易的安全与效率,强制该交易发生表征为真实状况时的法律效果。权利表见理论体现了民法制度的变迁,其法哲学基础是以保护“信赖”、“交易安全”为目标的“社会利益”学说对以“自主决定和“自己责任”为原则的“自由意志”理论的扬弃。

The theory of appearance of right refers to the exterior embodiment or forms of right, intention or principal′s qualification, which are found in transaction relationships and identified as the prototype. When these exterior embodiment forms become inconsistent with the real situation of transaction, in order to protect the reliance of the other party on the embodiment and the safety of the transaction, law will enforce them to have the same legal effects as those obtained when exterior embodiment forms are true. The jurisprudential foundation of this theory is R. Pound′s 'social interest' with the protection of reliance and transaction safety as its target rather than Kant′s 'free will' with 'independent decision' and 'self-responsibility' as its principle.