另一种物权行为理论——以瑞士法为考察对象

An Alternative Theory of Juristic Act of Real Right:Taking Swiss Civil Law As the Object of Study

瑞士法在物权变动上区分债权行为和物权行为,后者主要是不动产登记申请和动产交付,并在此基础上采用了有因性原则,强调债权行为对物权行为效力的约束,这与德国法的无因性原则形成鲜明对比,并对不当得利、善意取得、登记审查等制度产生不同影响。有因性原则并不绝对,它因债权行为形式瑕疵的弥补、债权行为无效的主张属于滥用权利以及合同解除导致合同内容转换而缓和。

In Swiss civil law, under the situation of real right＇ s change, the juristic act of real right and juristic act of obligation are distinguished from each other. The former mainly exists in the application of real estate registration and the delivery of moveable property, and based on them, the principle of having cause is adopted. A striking contrast is made between the principle of having cause and the principle of abstraction provided in German law, since the principle of having cause emphasizes the restraint of the juristic act of obligation over the effectiveness of the juristic act of real right. Moreover, the principle of having cause has also influenced undue enrichment, good faith acquisition and censor of registration differently. However, the principle of having cause is not absolute, instead, it is relaxed by remedy of the formal defects of juristic act of obligation, attribution of the claim of invalidity of the juristic act of obligation to abuse of power and modification of contents of contract caused by the rescission of contract.