不动产双重交易纠纷中的利益衡量

The Equity of the Conflict of Interest in Dual Real Estate Transaction

不动产双重交易纠纷长期以来一直备受各国学者关注,该问题的解决涉及到民法中的几个不同领域。从比较法的经验来看,一般而言,有悖于社会善良风俗的第二契约之效力并不会受到法律的保护,而认定第二买主的行为中是否含有反伦理性便成为解决纠纷的关键。反伦理性的确定不仅受到登记制度的影响,而且与不动产的现实占有状况密切相关。尽管我国物权法中设立的预告登记制度能起到一定的防患于未然的作用,但该制度并不能够完全防止双重交易的出现。因此,在司法实践中,有必要创设一套以预告登记制度为基础的、具体的利益衡量体系来解决相关的纠纷。

Many scholars attach importance to the dissension of dual real estate transaction in different countries. The solution to this problem involves some different fields in civil law. Owing to the not-quite-the-same basic principles adopted by the different countries in civil law, some inevasible diversity exists between the law theory structures that are taken in dissension solution. However, this diversity is just because different countries want to maintain the coherence in its own law theory system. Instead of hypostatic difference, there exists certain commonness between different countries when they take the essential value judgment in settling the dissension. Altogether, the core value judgment in this problem is that law should be expected in what area to respect and to protect the free competition right of the second buyer. According to the German law, the French law and the Japanese law, and the experience of comparative law, generally the efficacy of the Second Contract which is a breach of morality can＇t be protected by the law. And to judge whether the behavior of the second buyer is a breach of morality becomes the key to the settlement of the dissension. The judgment of breach of morality is not only affected by the registration system, but also closely related to the actual possession of estate. Notwithstanding, the provisional registration system for the transfer of real property established in the Property Law of the People＇s Republic of China has some precautionary effect,but it can＇t prevent the dual real estate transaction completely. Therefore, in judicial practice, we should set up a balancing of interest system which is based on the provisional registration for the transfer of real property to settle the dissension. Superficially, this paper is just talking about the value judgment in dual real estate transaction dissension. In fact, however, the core judgment of this problem is closely connected with the meaning of estate public announcement system. Consequently, the value judgment system discussed in the paper can also be used in other types of dissension in the transfer of title. After the adoption of the Property Law of China, some correlative theory structure has been established. The next research emphases should be to explain and apply the articles of the Property Law correctly. And the establishment of balancing of interest system is more important to the application of the Law.