出卖人处分权问题研究

《合同法》第 1 32条要求出卖人需有处分权 ,《民法典》制定中应删除类似规定 ,理由是 ,处分权是对既有权利进行处分的权利 ,买卖合同成立、生效的情形 ,均不需要出卖人处分权 ,买卖合同履行时也不一定需要出卖人处分权。出卖人处分权不影响其买卖合同的效力。既有立法的缺陷在于未明确区分处分与负担、处分行为与负担行为 ,没有认识到买卖合同的负担性质与所有权转让的处分性质并不相同。

Study on Seller's Right of Disposing

According to Article 132 of Contract Law, sellers have the right of disposing. While making the Civil Law, such kind of provisions shall be omitted for the following reasons: the right of disposing is the right to exercise the vested rights. Sellers' right of disposing does not needed in the execution of contracts for sale as well as the performance of contracts. Sellers' right of disposing does not affect the effect of the contract for sale. The limitation of the existing legislation is that no explicit distinction between disposing and burden, disposing act and burden act. The burden of contract for sale and that of the disposition of ownership transfer are different in nature, which has not been recognized.