物权对抗力规则在夫妻财产制度中的适用

The Application of the Confronting Effect of the Transfer of Real Right Under the Matrimonial Regime

非基于法律行为的物权变动模式下的物权变动采相对登记主义立法,登记的性质为宣示登记。无论法定夫妻财产制抑或约定夫妻财产制下,不动产物权变动因婚姻关系的成立、存续或解除而发生,未经登记不得处分,属于《物权法》规定而没有列举的非基于法律行为的物权变动。夫妻内部的财产关系应适用《婚姻法》规定,夫妻财产与第三人的关系适用《物权法》规定。当夫妻财产的物权变动与物权公示产生分离时,未经登记不得对抗善意第三人。

On the confronting effect of the transfer of real right arising from non-legal acts, the transfer could be subject to optional registration legislation doctrine featuring the publication registration. The transfer of real right under the matrimonial regime is in accordance with the establishment or termination of marriage. In this case, that property will be prohibited to dispose of unless it is registered, which could be classiifed as a type of the transfer of real right not caused by legal acts yet not practically listed in provisions of “Chinese Property Law”. The property relation within spouses shall apply to the stipulation of “Chinese Marriage Law” while if the third party is involved in this relation, “Chinese Property Law” would be given a higher priority to apply. In case the transfer of concurrent properties under marriage is separated from the publication of that real right, it may not challenge the any bona ifde third party if it is not registered.