物权行为与我国民法——基于制度衔接与交易实践的考量

Discussion on Several Problems in the Real Right Behavior——Based on system cohesion and trading practice activity

物权变动规则在可资借鉴的比较法层面,主要是对德意志抽象物权契约的取舍问题。物权行为其核心是指向物权法效果的意思表示,并通过交付、登记和其它外在形式表现出来。物权合意的客观存在有其立法和现实证据。物权行为理论能够解决我国民法适用中困惑的问题。民法的诸多制度设计均涉及民事行为无因性,我国未来立法将会采纳。

We refer to the change mode of the real right in comparative law which is accepting or not the Germen＇s theory of abstract agreement of the real right. The core of the juristic act of real right refers to a declaration of will for legal effect of ＂The property law＂, which is displayed through registration, delivery and another external forms. The objective reality of agreement of the real right has the evidence of legislation and reality. The preciseness of real right behavior theory could solve the puzzled problem. The principle of abstraction exist in numerous civil law systems which would be adopted by our civil legislation in future.