善意取得排除脱离物之辨——以善意取得制度的起源为视角

On the Bona Fide Acquisition of Stolen Goods——In the View of the Origin of Bona Fide Acquisition

善意取得制度是一种源起于日耳曼法Gewere、以手护手原则与罗马法时效取得的现代物权取得制度,脱离物之善意取得被大部分大陆法系国家民法排除,究其原因,并非是现代善意取得制度的创制,而是继承了以手护手原则对脱离物无限追及原则之流变,受其潜移默化之影响。但无限追及原则亦违背现代民法交易安全与交易便捷之原则,故应当对其作出妥协:回复请求权因时效经过而消灭。我国未来之民法典物权编应当改时效起算点为"脱离之日"。

The system of good faith acquisition is a system of modem property acquisition that originated from the German method of Gewere, the principle of hand protection and the statute of Roman law. The bona fide acquisition of the separating things is excluded by the civil law of most civil law countries. The reason is not the creation of modem bona fide acquisition, but it inherited the principle of the hand-protection principle of the infinite pursuit of the separating things, influenced by its subtle effect. However, the principle of infinite pursuit also violates the principle of modem civil law transaction security and transaction convenience, so it should be compromised： the right to reply is extinguished due to aging. China＇s future people＇s code of law should be changed in aging by taking the ＂day of separation＂ as the starting point.