民法典物权编的外在体系评析--论物权编外在体系的自洽性

On the System Evaluation beyond the Real Right Part of Civil Code:On the Self-consistency of the System of Property Rights outside the System

与民法典一样,物权编也有自身的内在与外在体系。物权编的外在体系是以诸多"基石性概念"为基础并由涵摄不同的概念的逻辑体系构建起来的规范体系。物权编是建立在"物权与债权、债权行为与物权行为区分"之下的、以"物权行为"统辖的基础之上的规范体系。其基本逻辑应该是:除了法律规定的物权变动之外,物权必须由物权行为(合意)创设,而且这种行为必须经过公示(交付或者登记)方可具有公信的效果,才能对抗第三人,从而发生绝对效力和排他效力。但我国民法典物权编却偏偏违反这一基本逻辑,让很多物权直接根据债权合意产生且登记对抗第三人。这就必然产生很多疑问:登记之前是物权吗?物权不能对抗第三人还是物权吗?物权的产生不必经过物权行为并公示?等等。这些都需要在未来民法典实施中作出扩大或者限缩解释。

Like civil code,the real right part has its own internal and external system.The external system of real right part is a normative system based on many "cornerstone concepts" and constructed by the logic system containing different concepts.In the author’s opinion,the real right part is based on the normative system under the jurisdiction of "real right act" under the "distinction between real right and creditor’s right,creditor’s right act and real right act." Its basic logic should be:in addition to the change of real right stipulated by law,real right must be created by the act of real right(consensual),and such act must be publicized(delivered or registered) to have the effect of public trust,so as to fight against the third party,so as to have absolute effect and exclusive effect.However,the real right part in our country only violates this basic logic,which makes many real right produce directly according to the agreement of creditor’s rights and register against the third party.This is bound to produce a lot of questions:is it a real right before registration? Is real right not against the third party or real right? Does the creation of real right need not go through the act of real right and publicity? And the like.All of these need to be interpreted in the future civil code implementation.