动产所有权的交付变动规则

The Rule of Changing Movable Ownership by Delivery

动产所有权的交付变动规则,《物权法》第23条的立法文义似乎进行了法定化的限制,使之成为强制性规范,但理解该规则属性的根本前提在于厘清立法目的。动产交付规则服务于内部关系和外部关系双重目的,实现此双重目的的制度样态本来就多元化,并且至少欧洲范围,动产所有权变动规则也正在演变为更宽松的模式。动产所有权属于观念构造物,观念构造物的变动当然可以遵循观念世界的规则。以最高人民法院为代表的司法机关对于《物权法》第23条文义的理解和认识,过于僵化和保守,没能把握条文背后的深层次法理价值,有必要在物权法定与意思自治的基础上重建应然的规则。

According to Article 23 of China Property Law,the rule of changing ownership by delivery seems to be a compulsory norm. However,in order to understand the doctrine nature of this rule,we should first understand the real legislation purpose of it. The rule of movable delivery aims at serving both the internal and the external relations. The fact is that legal rules with this purpose are quite diversified,and that the rule of delivery of movables is becoming more free and flexible at least in Europe. The title of ownership of movables is a construction based on conception,and surely its changing should follow the rule of the conceptual world. The China's Supreme People's Court can not truly understand the doctrine behind Article 23 of China Property Law,and applies it with conservative and rigid attitude. It's necessary to rebuild this rule based on the conception of thenumerus clausus and the autonomy of will.