权利瑕疵担保责任探析

Probing into the Obligation under Bond of Defective Title

权利瑕疵担保是我国合同法在借鉴两大法系立法经验的基础上所确立的一种合同责任形式。权利瑕疵担保与债务不完全履行、无权处分、善意取得制度密切关联,存在体系协调问题。权利瑕疵担保以合同有效为前提,而合同法第51条则将该类合同规定为效力待定,导致无权处分、善意取得丧失了适用的基础,因此,取消第51条的规定可以实现三种制度协调互补,发挥体系效应。

Warranty of defective title is a form of contract obligation, which is drawn on the experiences of the common law and continental family. It is closely related to the incomplete debt performance, adverse disposal and bona fide poss ession, but irreconcilable with the three systems. It takes effective contract a s promise, but code 51 in contract law states takes that as executory one, which makes the system of adverse disposal and bona fide possession lose it's basis o f application. So declaring off the 51 can let three systems be reconcilable and complementary, and play the role of system.