占有脱离物善意取得问题研究

Bona Fide Acquisition of Moveable Property Escaping from Owner

占有脱离物的范围应定位于非因原权利人之意思而丧失占有之物,不应仅限于盗赃、遗失物。在原权利人请求回复期间,占有脱离物的归属应区分有偿回复与无偿回复,而分别归属于善意受让人与原权利人。金钱、无记名证券重在市场流通功能,占有即本权,与善意取得丝毫无涉。

The moveable property escaping from owner should be identified as lost possession without intention of the original obligee, and it should not juat refered to as stolen property and lost property. During the repossessing period, the attribution of moveable property escaping from owner should distinguish compensated repossession from bare repossession, becuae they belong to bona fide assignees and original obligees respectively. The circulative function in the market is essential to money and bearer paper. Possession is the right in essence, which is not relevant to bona fide acquisition at all.