论物权公示与物权变动——兼及民法典草案物权编若干规定之改善

Publicity and Change of Real Rights: Improvement of Some Provisions in the Draft Civil Code on Real Rights

基于法律行为的物权变动,原则上以物权公示方法之履行为要件,但不以此为要件者,亦有之。已履行物权变动之公示方法者,除所有权保留外,必然已生物权变动。物权公示方法与物权变动要件系两个不同概念;所谓观念交付,非为动产物权的公示方法。一种物权,或一种物权的变动,有且只能有一个公示方法。物权公示,不仅与物权的取得发生联系,亦与物权的变更(例如效力变更)及物权的消灭(物权的丧失)发生联系。我国现行物权法及民法典草案物权编有关质权和留置权消灭的规定有待完善。物权和物权优先顺位的善意取得,以公示方法之履行为要件。

In principle, the change of real right based on legal act should take the performance of the real right publicity method as an important element. However, there are also some that do not take this as a requirement. Except for the ownership reservation, those who have fulfilled the publicity method of the change of real right must have completed the change of real right. The publicity method of real right and the requirements of the change of real right are two different concepts;the so-called concept of delivery is not a publicity method for movable real right. There is only one method of publicity in real right. The publicity of real right is not only related to the acquisition of real right, but also related to the alteration of real right(such as the alteration of validity) and the elimination of real right(the loss of real right). The current provisions on the elimination of pledge and lien in the "Property Law"as well related provisions of the draft Civil Code need to be improved. The bona fide acquisition of real right and the priority in real right shall take the performance of the publicity method as a requirement.