基于法律行为的商业财产权变动公示研究

The Publication Rules of Commercial Property Rights Changes Based on Juristic Act

《物权法》规定的物权公示方式主要是登记和交付,这些方法对商业财产权变动公示同样适用。但商业财产权公示规则与传统物权公示规则又有所不同,商业财产权变动公示规则要求更加安全、公正和高效。因此,除传统登记和交付公示方式外,还要建立一些适合于商业财产权利变动的公示规则。商业财产权利公示方式除了传统登记、交付外,还应有非典型登记、控制等公示方式。这是既符合传统民法物权变动公示要求,又符合现代商业财产权利变动公示要求的系统规则,它贯彻了私法领域物权变动公示的意思自治,体现了法律行为在物权变动公示规则领域的体系统制地位。

Registration and delivery,as the main publication means prescribed in the Property Law,apply equally to the publication of commercial property too. However,the publication rules of commercial property rights changes differ from those of traditional property rights changes,they need to be not only safer,but also fairer and more efficient,which means in addition to the traditional registration and delivery publication ways,some publication rules appropriate for commercial property rights changes should be established. This understanding has important values. It is both a theoretical and practical issue. Property transfer methods should also make a breakthrough,which should include registration transfer,delivery transfer,notice transfer and agreement transfer. These rules constitute a legal system consistent with both the requirement of traditional rules of civil law property publication and modern commercial property rights publication. It reflects the difference between traditional property legal system of civil law and commercial property right system under market economy,and also truly implements the autonomy principle of free will in the field of private law,reflects the systematic ruling function of legal act theory in the field of the publication of real rights changes,and corrects the bias of some theoretic foundation in the property legal system research.