论物上担保合同无效的民事责任——兼论我国物权法建议稿中的“物权变动与其原因行为分离”原则

On the Civil Responsibility of the Invalidation of Guarrantee Contract in Res——Concurrently on the Principle of “Which the Change of Jus in the Law” in our Country's Real Law Suggestion Draft

从民事责任方式、归责原则和有关过错责任人的赔偿范围等方面 ,分析了物上担保合同无效的民事责任问题 ;对不能取得担保物权时当事人是承担无效责任还是违约责任应区分情况分别对待 ,不能“一刀切” ,故“物权变动与原因行为分离”不宜作为我国未来物权法的一项基本原则。

The civil responsibility for invalidation of a guarantee contract in res is analyzed in the aspect of the forms, the principle and the limits of civil responsibility undertaken by the parties; That “the change of jus in res is separated from its causal act in the law” should not be laid down into one of the basic principles of the Res Law of the People's Republic of China in future, because whether the civil responsibility for invalidation or breach of a guarantee contract in res assumed by the parties should depend on a situation and we should not “impose uniformity without examining individual cases” when the jus in res under a guarantee contract in res can not be taken by a party.