论动产抵押物的转让——兼析动产物权公示方式之调整

动产抵押权的登记公示制度破坏了公示方法选择之统一性原则,导致登记公示的动产抵押权与占有公示的动产所有权之间的矛盾,并最终将因登记而获得对抗力的抵押权人与因信赖占有而受公信力保护的第三人推向了利益尖锐对抗的两极。现有的立法与学说在平衡与协调两极利益上均无功而返,唯有将动产抵押物限制在一定范围的“准不动产”上,并在该领域也采行物权的登记公示制度,才是从根源上解决问题的最具合理性的方案。

Transfer of Hypothecated Goods--Concurrently Analyzing Notifying Ways of Real Rights of Movables

The registration-publication system of mortgage of movables impairs the uniformity of choice of publications. As a consequence, a conflict appears between the mortgage of movables that is notified by registration and the ownership that is notified by possession, which may ultimately result in a sharp conflict of interests with the mortgagee who gains a competitive right by way of registration at one side and the third person who gains a protection by way of possession at the other. Existing legislations and doctrines can do nothing at harmonizing the two interests. In these authors’ opinion, the only way reasonable to solve this problem is to limit the security right to chattel real and to adopt a registration-publication system in this area.