法学发展的“十字现象”——以物权行为制度与《合同法》第51条为说明主体

由于我国法学发展忽略“十字现象”,民法典不采物权行为制度似已成定论,并决定采用意思主义辅之以交付、登记制度;惟此一制度确有窒碍难行之处,是否即应采用,兹事体大,仍值再予辨证。本文论述不限于理论,并提出数例说明;此外《合同法》第51条规定之误,亦一并叙之。文中分别介绍不采物权行为制度的主要见解,及本文对其之评释;并分举数例以说明不同制度的优劣;同时探讨意思主义下的物权变动模式,其内容涉及法国民法模式、日本民法模式,与我国学者所创设的模式;最后并以法律经济分析法,探究是否应采用物权行为制度与《合同法》第51条规定的交易成本辨析,以为我国民法典立法应采用物权行为制度之佐证。

The "Cross Phenomenon" of Evolution of Law --An Observation About Dingliches Rechtsgeschaeft and Article 51 of the Contract Act

Since the “ cross phenomenon” is generally ignored in the evolution of law in China, it seems for certain that the Dingliches Rechtsgeschaeft (a German method related to the conveyance of real property) will not be introduced in the proposed Civil Code. Instead, a relevant French model (“ doctrine of ideas” ) will play a major role in the conveyance of real properties, with delivery and registration as supplementary requirements. However, such a framework would hardly be an ideal one. Since this issue is of the utmost importance, it is advisable for us all to discuss it more thoroughly before any decision regarding whether or not to adopt the French doctrine is made. Apart from theoretical observation and illustration by way of decided cases, this paper also makes some comments on Article 51 of the Contract Act. Furthermore, This paper introduces and makes comments on the academic views against the introduction of Dingliches Rechtsgeschaeft in the Civil Code and illustrates the merits and drawbacks of different regimes. At the same time, the conveyance of real property under the “ doctrine of ideas” is also discussed, which concerns with different conveyance methods, including French method, Japanese method and ways found by Chinese scholars. At last, this author, by means of methodology of economic analysis, highlights the potential transaction costs under the circumstances where Dingliches Rechtsgeschaeft were adopted or not adopted, as well as the transaction cost where Article 51 of the Contract Act takes effect, hoping that it may well justify the introduction of Dingliches Rechtsgeschaeft into China's Civil Code.