论不动产登记“缩略”的不法性及其阻却

The Illegality and Prevention of Omission of Real Estate Registration

不动产登记缩略的不法性具有公法、私法双重面相。就其公法不法性,可通过行政处罚等公法手段予以规制,并得与其私法效果相区隔。就私法效果而言,登记缩略因违反登记要件主义,使得该三方当事人所期望的物权效果无法实现;并因黑白合同的存在,导致其不法性进一步扩散,使之层叠为税费规避、强制性法律规范违反和虚伪表示的交错。登记缩略在私法解释学上的核心,在于如何焊接因中间登记省略而断裂的物权链,从而阻却其违法性,其方法包括授权理论、期待权理论和我国实务中的黑白合同方式;登记缩略的原因债权行为表现为链式交易合同、债权让与、利益第三人合同或第三人履行合同,其履行则表现为给付连锁、缩短给付或指示给付;因我国物权变动模式之通说尚未形成,仅依据《物权法》第15条,登记缩略情形下物债效力区隔和传递,存在多种解释余地。

The omission of real estate registration is illegal with duality of public law and private law. As to violation of public law, the registration omission is subject to administrative sanctions, being separated from its private law effects. As to its effects in private law, since the omission has broken the rules of registration constituents, it will fail the third party＇ s expectation of property rights effects. Further, the illegality of regis- tration omission will be aggravated by the existence of ＂black and white contracts＂, leading to mixed conse- quences of tax evasion, violation of compulsory regulations and fraudulent statements. From private law per- spective, the core of dogmatic explanation of registration omission lies in how to weld the broken chain of prop- erty rights due to omission of middle registration so as to prevent its illegality. It is suggested to adopt such measures as the authorization theory, the theory of expectant rights and registration of ＂black and white con- tracts＂. The obligational acts as causes of registration omission include contracts of chain trading, assignment of contractual rights, contract for the benefit of third party, and contract by performance of third party; and such obligations are performed as chain payment, ＂short cut＂ payment, and indicating payment. For the lack of general theories on the alternation mode for real rights in China, the separation or transition of effects be- tween real rights and obligatory rights can be interpreted in different paths merely according to Article 15 of the Property Law of PRC.