论物权变动的理性基础及其实现

物之支配的本质 ,是人的外在化意志对物的支配。但以法律事实为实证 ,以物之行为支配为公示的物权 ,其外在化意志对物的支配却发生断裂。为此 ,限制物上意志对峙中既存意志的排斥力 ,成为物权变动理性判断的必然选择。意思主义和折衷主义均以蕴涵双重理性意义的合意为基础 ,而形式主义则以独立的物权合意作为物权变动的理性基础。

On Reasonable Basis and RealiIation of Alteration of Real Right

The essence of dominance over things is that things are dominated by the external will. Real rights are identified by the legal factors and demonstrated by the dominance over things. Because the separation between identification and demonstration of right is unavoidable, it becomes the necessary choice for rational judgment to restrict the power of exclusion of the existing will on the thing. The autonomy of the will and the eclecticism are all based on such basis as agreement that contains twofold rational senses while the formalism's rational foundation results from such an unattached concept as action of real right.