占有改定与善意取得

On Possession Reformulation and Bona Fide Acquisition

在是否发生善意取得的法律效果上,德国法区别对待占有改定与指示交付,这并不具有充分的根据。而无论是"以手护手"原则、"所有权人与受让人给予出让人同样多的信赖"、"避免隐秘交易与舞弊行为"或"所有权人对其权利丧失无从知觉或阻止"等理由均不足以否定占有改定下适用善意取得。只要受让人基于无权出让人占有的信赖而为交易,即应肯定其善意取得所有权,不应因占有移转之方式而有差异。

With respect to the legal effect of Bona Fide Acquisition,there is no enough rationale for different treatments on possession reformulation or indication delivery in German law.The existing theories and arguments cannot convincingly negate the application of Bona Fide Acquisition in case of possession reformulation,such as principle of ＂Hand muss Hand wahren＂,doctrine of ＂the same credit granted to assigner by the owner and receiver＂,＂avoiding secret trade and cheating＂,or the ＂owner has no consciousness to the lost of his ownership or is not capable of preventing the losing of ownership＂.This paper holds that as long as the receiver believes that the non-authorized assigner is the owner and has finished the transaction with him,the Bona Fide Acquisition principle should be applied to,and there should be no discrimination by different ways of possession transfer.