我国不动产善意取得构成要件探究

The Research on the Constitutive Requirements of Obtaining Real Property with Goodwill of Our Country

我国《物权法》第106条确立了不动产善意取得制度。然而,该条文未明确其构成要件。要准确运用该制度,必须先厘清瑕疵登记"、"无权处分"、"善意""等涵义,否则,就有被曲解和滥用的可能。不动产善意取得制度构成要件应包括:不动产登记薄上存在瑕疵登记;让与人是具有合法权利外观的无权处分人;不动产物权的变动须为合法的交易行为;受让人受让该不动产物权时是善意的;当事人必须办理完毕登记手续。

On the mechanism of obtaining real property with goodwill is established in the article 106 of Chinese Property Rights Law. Since the system hasn＇t its definite constitutive requirements in the article, a careful dissection of the terms, such as ＂Imperfect Register＂, ＂Unauthorized Disposal＂ and ＂Goodwill＂, must be made clearly to prevent the possibility of misinterpretation or abuse. All the constitutive requirements are as follows： Firstly, imperfect register should he existed in the register of real property. Secondly, assignor seems to have legal right to dispose of the real property, in fact, he is unauthorized disposal. Thirdly, assignee obtains the right of real property by legitimate business transactions. Fourthly, assignee is goodwill before he obtains the right of real property. Finally, assignor and assignee should finish the registration of alteration.