我国无权处分制度反思

统一合同法颁布之前,我国的立法及司法实务中将无权处分的债权合同视为无效合同。而合同法颁布之后,合同法第51条将无权处分的债权合同规定为效力待定的合同。这样的规定无论从价值判断或法律体系上看均有许多不合理之处或不完善的地方。合理的做法是,应建立承认物权行为理论的物权变动模式,并以这种模式为前提探讨无权处分的规则。

A Review of the Unauthorized Disposition system in China

Contract for debts without authorized disposition right was regarded as invalid in our legislation and judicial practice before the promulgation of uniform law of contract, but then it was regulated as a pending valid contract by the article 51 of the law of contract. This paper discusses that these regulations are unreasonable and imperfect when viewed from both the value judgment and legal system, so it's necessary to establish an alteration mode under the theory of real right and make a probe into the rules of unauthorized disposition.