善意取得证明责任分配规则研究

与德国等国家和地区相比,我国《物权法》规定的善意取得制度有明显的优先保护所有权的倾向。由此,我国的善意买受人承担着更多的交易风险,其中包括以善意取得各个要件事实证明责任为主的诉讼风险。其原因是我国的占有制度的性质有别于其他国家和地区;此外,在物权行为有因性和无因性之间做出的不同的政策性选择,以及由此决定的善意取得制度立法精神的不同,也是造成这种差异的重要原因。

Allocation of Onus Probandi in Bona Fide Acquisition

In contrast with the laws in Germany and other states,the provision concerning bona fide acquisition in China's Real Right Act obviously intends to consider as its priority guarding the safety of property. As such,a Chinese purchaser in good faith seems to have to run much more risks of transaction,including sustaining the burden in litigation of proving his/her having met all requirements of good faith,paid reasonable consideration and fulfilled occupancy or registration,and bearing the risk of losing the case. On the contrary,in Germany and elsewhere it is the man who challenges good faith acquisition and applies for replevying his property to bear the onus probandi to prove purchaser's malevolence. This discrepancy mainly lies in the dissimilarity between China's legislative intention and that of Germany and elsewhere. Further,adoption of disparate systems of possession and dingliches rechtsgeschaft also contributes a great deal.