拍定人与第三人利益平衡机制之构建

The Establishment of Mechanism of Balancing Interests between the Bidder and the Third Party

强制拍卖的核心问题在于如何更好地协调拍定人和案外第三人的利益冲突。本文以利益平衡机制为视角,探析了公法说及私法说的理论缺陷,主张法院强制拍卖应采折衷说,在维护拍卖公信力和拍定人利益的同时扩张适用善意取得制度,区分拍定人的善意或恶意,在拍定人和第三人利益协调问题上取得圆满的契合点。

The core issue of mandatory auction is how to coordinate the interests conflict between the bidder and the third party. This paper, based on the mechanism of the balance of interests, analyses the defects of the doctrine of the public and private and advocates the doctrine of compromise in order to maintain the credibility of the auction. At the same time, we should applicate the Bona Fide Acquisition to made a perfect converging point between the interests conflict of the bidder and the third party.