买卖合同交付主义风险负担浅析——以“一房二卖”为切入点

Research on the Risk-bearing of Delivery Principle in Sales Contract——Taking “One House Sold to Two Buyers” Cases as Breakthrough Point

买卖合同的风险负担如何规制,向来有交付主义和所有权主义之争。《合同法》借鉴CISG后采纳交付主义。针对"一房二卖"中标的物毁损灭失风险的规制,交付主义映射出现实困境。结合《物权法》的债权形式主义物权变动模式,交付主义映射出理论困境。从解释论出发,在现行法律框架下寻求上述困境的破解路径,不失为一种可行的方法。

There has always been a dispute between the principle of delivery and ownership on how to regulate the risk-bearing of sales contract. By learning from CISG,the"Contract Law"adopts the principle of delivery. According to the regulation of the risks of damages or losses of the subject matter in"one house sold to two buyers"cases,the principle of delivery has reflected a realistic predicament. Combined with the change mode of real right from creditor's rights formalism in "Property Law",the principle of delivery has reflected a realistic predicament. To solve the above predicament,it is a viable method to find the path in the framework of the current law through hermeneutics.