不动产买卖合同竞合的规则提炼与证成

Extraction and Justification of the Rules of Overlapping among Sale Contract of Immovable Property

借由法院系统内部的操作规范与司法解释所创设的不动产买卖合同实现与执行的顺位规则,在不动产"一物数卖"无法可用的情况下,解决了司法实践的燃眉之需,也为法律规则注入了道德血液。然而相关规则存在体系性较差的弊病,真正属于债权竞合的规则未能清晰地提炼出来,规则的正当性亦未得到充分的阐释。不动产买卖合同竞合的裁判规则包含三个顺位:合法占有者、先行支付价款者、在先成立者;不动产买卖合同竞合的执行规则为:支付价款达一定比例者优先于金钱债权。这两种竞合规则在整体上基于物债二分的类型论获得其逻辑体系上的正当性,权利外观规则与政策考量则分别补强了合法占有者优先与先行支付者优先规则。

Under the situation that there are no suitable rules for immovable property sale contract overlapping to satisfy the urgent need of judicial practice and introduce morality to legal rules,some legal norms of priority concerning realization and execution of credit of immovable property sale are enacted by technical specification and judicial interpretation within the court system. However,these legal norms cannot satisfy the requirement of systematization of the civil law,and appropriate norms of overlapping for credit are not clarified. Meanwhile,the current norms of overlapping are not justified fully. The norms of overlapping of judgment include： first priority occupied by lawful possessor; the first payer getting second priority; the third priority being the first contractor. The norm of overlapping for execution is that the contractor reaching a specific proportion can take priority than money obligatory. These norms of overlapping have the logical justice from the typology theory,and the rule of right appearance or policy considerations have reinforced the justice of the lawful possessor＇s priority and the first payer＇s priority.