占有脱离物之善意取得研究——以《物权法》第107条为中心

Research on the Bona Fide Acquisition of Moveable Property Escaping from Owner——With the Core of Article 107 of Real Right Law

《物权法》第107条将占有脱离物的范围仅限于遗失物。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。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。

Article 107 of Real Right Law provides that the scope of moveable property escaping from owner should be limited to the lost property. The scope of moveable property escaping from owner should focus on lost chose in possession through no fault of intention of original obligee, and it should not only limited to stolen property and lost property. During the period of repossessing by original obligee, the attribution of moveable property escaping from owner should distinguish cornpensated repossession from bare repossession, and belong to bona fide assignee and original obligee respectively. The negotiable function in the market is essential to money and bearer paper. Possession is right in essence, which is not relevant to bona fide acquisition at all.