动产善意取得的理论基础再审视 基于权利外观学说的建构尝试

Resurvey on thetheoretical foundation of Bona Fide acquisition Constructionattempts based on the doctrine of Rechtsschein

由于动产占有公示作用以及信赖度具有相当的局限性,致使公信力之说作为善意取得的理论基础渐受质疑。为修补这一缺陷,扩展的权利外观要件、占有获取力说、占有放弃说应运而生,但都未获学界认可。鉴于权利外观有信赖度的强弱之分,一元化的权利外观确有必要予以放弃,占有与占有移转都应作为权利外观受到同等对待。考虑到所有权维护在双方相对正当性原则下的独立价值,只有当受让人比所有权人获得更强的占有时,才能为适用善意取得提供正当化依据。此外,受让人必须可归咎地获得转让动产的占有以及受让人主观的善意要件都是实现所有权维护的必要因素,也构成了权利外观学说的重要组成部分。

Due to the reliability and publicity, possession has considerable disadvantages. Therefore, the doctrine of public reliance, as a theoretical basis for Bona Fide acquisition, has been widely criticized. Various theories tried to propose new solutions, but none of them has succeeded. In view of the difference of the strength of Rechtsschein, a unified Rechtschein has to be abandoned. Possession and transfer of possession should be treated equally as the Rechtsschein. In account of the two--sided iustification, it is valuable to maintain ideological ownership. Only when the transferee has more possession than the own- er, his Bona Fide Acquisition can be justified. In addition, the transferee must be attributed to obtain the transfer of movable property possession, as well as the assignee of the subjective elements of Bona Fide are necessary elements to achieve the maintenance of ownership, which also form the theoretical basis of doctrine of Rechtsschein.