| The issue of the movement of rights has always been the fundamental problem in civil law system.The movements in the rights of civil law are mainly divided into the meaning of Registration Antagonism and Registration(formal)Effectiveness.Under the formal Effectiveness,Chinese scholars distinguish the patterns of formalism into creditor formalism and formalism of real right.And then consider that the movement of rights in our country civil law is mainly the former.This model combines Real right and Debt,deny the existence of “dingliche Einigung”,and agrees that the creditor's rights are agreed to be the content of the credit contract plus the movement of the right to register or deliver.Only the credit contract can not move rights.The node of the movement of rights is placed at the time of the occurrence of the factual act(movable property delivery or real estate registration),no factual act,no right to move.Since the reform and opening up,this model of change in the rights of debts has always occupied the dominant position of the movement of rights in China,but it does not recognized the existence of the form of movement of rights that is independent of the discretion.It not only has theoretical defects that it cannot solve but also makes the judiciary.The application of this model is in a vague situation,and even inaccurate judicial decisions have emerged.In theory,the theory violates the conceptual system and leads to a logical dislocation: since the credit contract contains both the credit and the real right,and the real right directly points to the movement ofthe right,why must the facts stipulated by law? Can the transfer be carried out when the behavior is satisfied? Is there any change in the meaning of the right to move in the act of delivery and registration,but only a factual act? If there is no specificity or non-existence of the time-of-contract of the contract in the sale or purchase of the property or the future sale,how can there be a direct agreement on the change of the right in the credit contract? Of course,the first chapter of this article also elaborates on the existence of many other unsolvable dilemmas that do not recognize the existence of independent property rights.And the application of this theory in judicial practice has not been fully implemented.the cases collected in this article,most of the cases use the term "debt formalism",but in essence,there is no clear registration or delivery.Behavior is a factual act,and most judgments are in a vague state.However,all judgments believe that the effectiveness of a credit contract can affect the effectiveness of property rights changes,but this does not mean denying the existence of independent property rights.There is no abstract principle after recognizing the principle of separation.In fact,there is no the creditors 'formalism in China's judicial practice.Based on,this paper believes that in China's General Principles of Civil Law,property rights have been clearly defined.On the basis of the concept of creditor's rights,thoroughly clarifying the separation of Act of Liability and Act of Disposition and demonstrating its rationality is the best counterattack for claiming the formalism of creditor's rights,and then providing amendments to the civil code that is being compiled in China,thus breaking through our civil law.From the perspective of legal history,the second chapter of this paper systematically sorts out the origin and formation of the separation between Act of Liability and Act of Disposition and the process of inhaling legislation.The separation goes back to Paul's doctrine of "just cause" for the transfer(D.41.1.31 pr.)and Urien(D.41.1.36).Ulpianus(D.12.1.18),A fragment of a different view of the same case(whether the inconsistency of the cause can lead to an effective transfer of rights).Specifically,according to Paul's point of view,a simple transfer cannot lead to the transfer of ownership unless there is a sale or other reason,but Paul does not explain whether the parties can agree on whether the cause is agreed upon.Following thispath,Urien believes that the differences between the parties in understanding the reasons for the transfer do not affect the transfer of ownership,but Ulpianus believes that if the two sides have different understandings of the reasons for the transfer,the ownership will not Transferred(except in the case of mixing and consumption).Later generations of jurists apparently discovered this contradiction between Urien and Ulpianus when combing "Study of Confucius",annotating jurists and commenting jurists try to use the "differentiation" interpreting the different viewpoints of Urien and Ulpianus,gradually developed the theory of the cause of misunderstanding and the theory of "far cause and near cause".The reason of misunderstanding can also lead to the transfer of ownership.The non-debt settlement is typical.The cause of misunderstanding further leads to the separation of the relationship between the cause and the debt.For example,in the non-debt settlement,the debt relationship becomes the far cause of the transfer of ownership.The reason is to become the proximate factor of transfer ownership,and thus the transfer is no longer subject to the debt relationship.As long as there is a near cause,the ownership can be transferred,thus forming the theory of “far cause and near cause”.After Accursius commented on the theory of "far cause and near cause",the emergence of the titulus-modus theory(nominal plus formal theory)emerged and finally formed in the hands of Apel,and occupied the dominant position of the change of rights in the early 19 th century.Among them,titulus(nominal)is the reason for the transfer of rights(sales contract,gift contract,reciprocal contract,etc.),which includes the meaning of setting,changing,eliminating rights and obligations,and including the right to transfer rights.And modus(form)is the actual delivery of the subject matter in order to fulfill the titulus,is a factual act.Savigny discovered the theory of disciplinary behavior based on this theory.Of course,in addition to interpreting the relevant legal words in Roman law,the theory of the change of property rights in the German inherent law(Germanic law),especially the agreement on the property rights in land ownership(Auflassung)also played a decisive role in the theory of disciplinary behavior.In the original Germanic law,the Gewere system is different from the Roman law.According to the Gewere system,the transfer of property rights is the process of possession transfer.Without the transfer of possession,there is no transfer of property rights.Gewere has the presumption of power.It also has the effect of transferring rights.However,with the frequent and complicated transaction,the Gewere system based on the presumption of ownership of the possession state is gradually alleviated by the symbolic ownership transfer behavior of the Sala contract and the Investitura system of the actual transfer behavior.Later,in the field of real estate transactions,with the increase of real estate transactions and the expansion of scope,the Sala/Investitura system was replaced by the Auflassung system because of its unfavorable trust and inconvenient trading.The Auflassung system contains both the delivery and the behavior of the parties.The form of real estate.Moreover,the Germanic law combines the registration system that relies on the rights enjoyed by others with the Auflassung system through publicity to form a new system of change in real estate rights.The discovery of the theory of disciplinary behavior is based on the accumulation of the above-mentioned various materials by the German legal giant Savigny.His theory of titulus-modus occupying the dominant position of the change of rights(that is,the requirement to obtain ownership must have the premise of claims)The fundamental challenge was raised and it was argued that the legitimate cause did not have to be first to be transferred,it could also be combined with the transfer(factual act).Taking the actual gift as an example,he believes that there is no combination of legitimate reasons and the factual act of transfer when transferring ownership.In addition to the simple transfer of possession,it also implies the agreement of the parties to transfer ownership.Consensus is the legitimate cause of ownership transfer.The meaning of this transfer right is a property right contract,which is separated from the credit contract.In the end,Savigny pointed out that the transfer is also a real contract.The contract no longer only refers to the credit contract.It also includes the property contract and the family contract.Within the scope of the property law,the property contract is separated from the credit contract.This discovery by Savigny was finally accepted by the German Civil Code,which was implemented in 1900,and was reflected in the separation of burden behavior and punishment in the general legal act.After clarifying the separation of Act of Liability and Act of Disposition from the dimension of legal history,the third chapter of this paper further analyzes the concept of Act of Liability and Act of Disposition and the specific separation structure from the horizontal level.That is to say,Act of Liability refers to the constraint that a person expresses to the opposite person through a certain behavior or not for a specific behavior.It mainly consists of setting a payment obligation to establish a certain credit and debt relationship.It is only setting The legal act of the debt-debtor relationship is not directly related to the change of rights.The Act of Disposition is a behavior that directly triggers a change of rights.It can be a legal act of both parties or a one-way law act.The two have their own constituent elements and have corresponding legal effects.They directly relate to the system of material debts in the field of property law.Therefore,the separation of Act of Liability and Act of Disposition in the entire civil law system is extremely important.In the specific structure of the separation of Act of Liability and Act of Disposition,the Act of Liability is usually the “cause”,which itself contains the “cause” of the behavior,that is,the reason why the parties voluntarily bear the obligation in order to achieve the purpose they want.For the burden of the cause,there is no need to investigate any other reasons than the behavior,just understand from the behavior itself.That is to say,if the Act of Liability occurs in the legal effect of the debt relationship that the parties desire,in addition to the debts and debts reached between the parties,the reasons for the reasons are also needed.If the reasons are flawed or lacking,the burden will also be invalid or effective.have flaws.The Act of Disposition is to fulfill the obligation of payment in the act of burden(of course,it can also exist separately,such as abandonment),it directly points to the change of rights,acts on the subject of the right,as long as the act itself is innocent or invalid,the Act of Disposition is Effective,the reason is not included in the Act of Disposition,so the Act of Disposition generally exists as a legal act that is not to be caused.Therefore,the Act of Disposition must require the subject matter to be specific,otherwise it will not be able to point to the change of the subject matter.In addition,the Act of Disposition is not in the form of freely contracted behavior,which is derived from the transfer.Therefore,itnecessarily requires a certain form of expression,that is,it must have certain formal restrictions.These forms are in different countries.The performance is not exactly the same.For example,in the registration of real estate,the disposition and registration procedures in German civil law are independent of each other,and they are also in an independent position in the substantive law of property.They are expressed as “Act of Liability + Act of Disposition + registration application + registration consent+Registration record”,which is a combination of two legal acts,two procedural acts and one factual act.In the Swiss Civil Code,the registration application and the registration consent are regarded as the same meaning and combined with the punishment behavior,which is expressed as “Act of Liability+ registration application+ registration record”,in which “registration application” is the punishment.Behavior,"registration record" is a factual act.In the delivery of movable property,whether in German civil law or Swiss civil law,the transfer structure of movable property ownership is expressed as “Act of Liability + Act of Disposition+ delivery”,and the Act of Disposition is revealed from the act of delivery,it is a punishment act.External manifestation.Although the separation of Act of Liability and Act of Disposition has emerged,there has been a strong criticism of this theory and even a tendency to deny separation.These criticisms believe that the principle of separation does not conform to daily concepts and legal concepts,but should be consistent with the combination of credit rights and real rights.However,there has never been a point of view that can fundamentally completely negate the principle of separation,and the principle of separation has a special advantage in solving future transactions in transactions,trading of species,and large-scale transactions involving the national economy and the people's livelihood(of course,transactions in daily life can also be very Good solution),its rationality is obvious.It is true that the principle of separation is not so mysterious,but the misunderstanding that Chinese scholars did not have a thorough understanding of this theory.After a detailed analysis of the origin,specific structure and rationality of the separation of Act of Liability and Act of Disposition,the fourth chapter of this paper aims to clarify the current law in China and clarify the vague state faced by China'sjudicial practice(actually from Since the introduction of the Judicial Interpretation of Sale and Purchase Contracts,many cases have accepted the principle of separation,and proposed amendments to the drafts of the various compilations of the Civil Code that are being carried out in China.Of course,it is necessary to first clarify whether the principle of separation has been recognized since the modernization of our civil law.The conclusion is that the "Da Qing Civil Law Draft","The Draft Civil Law of Republic of China" and "Civil Code of the Republic of China" all absorb the separation of Act of Liability and Act of Disposition.It is said that in the process of modernization of the civil law,the selection of this logical system in the screening of the world's complicated legal system is rigorous and practical legislation is in line with China's national conditions.However,the drafts of several civil codes after the founding of the People's Republic of China tend to blur the separation of the two due to the influence of Soviet jurisprudence,and then the registration or delivery as the effective requirements of the credit contract.This directly affects the disregard of the principle of separation in our civil law research after the reform and opening up,which has led Chinese scholars to use the sense of reality and intuitiveness to understand the legal norms and to generate the pattern of change of rights such as creditor formalism,and then to advocate the behavior and punishment.Separated scholars have fallen into controversy for decades,and so far no results.Strictly speaking,China's current law does not deduce the existence of the separation principle.On the contrary,some norms deny the possibility of separation.For example,Article 72 of the General Principles of the Civil Law indicates that China has not adopted the model of formalism of Real right in the change of property rights,but adopted the legislative model of delivering the effective force,but the legislator did not recognize the transfer of ownership,except for the credit contract.In addition to the way of obtaining,there is also the possibility of expressing the meaning in the performance,and naturally it is impossible to recognize the existence of the Act of Disposition,and from some subsequent regulations,there are also provisions for the delivery or registration directly as the requirements for the entry into force of the credit contract..In the "Contract Law",the provisions of Articles 51,132,and 133 can of course explain the possibility of separation,but from the perspective of the formulation background and content system of the entire contract law,the Act of Disposition is not recognized.The independent existential form of creditor dominance,and although there is a possibility of separation in the contract law,this does not mean that the contract law truly recognizes the principle of separation.On the contrary,it denies the existence of separation to some extent.However,in practice,if the right holder is not ratified or the disposition person has not obtained the disposition right contract,it is invalid,which makes the party unable to claim the breach of contract liability and thus makes Article 51 into trouble.Therefore,in the application,most of the judicial interpretation of the Contract Law II The provisions of Article 15 are to circumvent the application of Article 51 of the Contract Law and determine that the contract for sale is valid.As of the enactment of the Property Law,Article 15 of the Act corrects the requirement to register or deliver the entry into force of a credit contract,thus forming a situation in which the cause of action is distinguished from the result of the change in property rights,but this effect on the contract The distinction between the effect of the change of property rights is completely different from the separation of the burden act and the disciplinary act,so it is difficult to conclude from the whole that the Property Law has recognized the principle of separation.However,in 2012,the Supreme People's Court promulgated the“Explanation of Sale Contracts”,in which Article 3 no longer defined the contract stipulated in Article 51 of the Contract Law as a contract for sale that includes both the creditor's rights and the intention to transfer ownership.It is considered as the effect of the disposition of the contract of ownership transfer in the field of property law,and the existence of the principle of separation is recognized.Based on the rationality of the separation of Act of Liability and Act of Disposition described in the full text and the gradual recognition of its existence in China's judicial practice,it should be reflected in the civil code that is being compiled in China.Although the General Principles of Civil Law enacted in 2017 does not have special provisions.The content of the "contract" extracted from each division,but this does not mean that there is no possibility of remedying.This paper believes that this part of the contentcan be put into the most typical contract compilation,and should be clearly defined in the contract(draft)255 The scope of application of the contract is not limited to the creditor-debtor relationship and the identity relationship,but also includes the disposition of the contract.In addition,provisions for expressing changes in property rights should also be designed in the property rights draft(draft),and the provisions on unauthorized disposition should be stipulated in the compilation of contractual rights. |
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