An Examination On Trennungsgrundsatz And Abstraktionsprinzip Of Dinglicher Vertrag

Theory on dinglicher Rechtsgesch?ft (juristic act concerning real rights) should be regarded as a natural consequence of developments of theories on manifestation of intention and of theories on categorization of civil rights in German civil law tradition. Meanwhile the proposal of this theory was a tremendous compelling force pushing up the perfection of civil law system of Germany. The Trennungsgrundsatz and Abstraktionsprinzip of this theory play a pivotal role in understanding this very system. Under this theory, transaction is splitted into two parts: underlying transaction (obligationary contract) and the act of performance of obligation (real contracts). It also asserts the effects of dinglicher Vertrag is not related to the validity of the underlying transaction. The Trennungsgrundsatz of dinglicher Vertrag contains two aspects of implications: one is separateness in terms of effects; the other is separateness in terms of formalism. In context of civil law currently prevailing in Taiwan and Germany, the notion "formalist separateness"is different from what is called "dual representation"presumed by scholars in mainland China. In other words, dingliche Einigung is not necessarily bound to be found out in übergabe and Eintragung, but could outstands itself in a form independent of both the two form of transference aforesaid. A separate dinglicher Vertrag is supposed to being composed of two parts: dingliche Einigung and übergabe for movables; and dingliche Einigung and Eintragung for immoveables. All of the following three cases are not within the ambit of Abstract principle: firstly, in cases of simultaneous performance on transference over titles of movables; secondly, where the transferee has already been in the possession of the Sache; and where transference of real rights happens according to the conclusion of obligationary contracts by the will of parties. The Abstraktionsprinzip prerequisites the recognition of Trennungsgrundsatz of dinglicher Vertrag. Abstraktionsprinzip of dinglicher Vertrag contains two aspects of implications: inhaltliche Abstraktion and ?u?erliche Abstraktion. The former aspect indicates the of dinglicher Vertrag, which leads to the neutrality of value judgment upon real act; whereas the latter indicates the effects of dinglicher Vertrag is beyond the reach of underlying transaction and remains unaffected from the defectiveness of validity of obligationary transaction. The practical significance in recognizing the Abstraktionsprinzip lies in a focus on protecting security of transactions. With a fulfilling of this purpose, however, Abstraktionsprinzip creates an imbalance between the interests and benefits of the original title holders and the third party in chains of transactions as side effects. For a rescuer, countries and other jurisdictions observing this theory attempt to modify it by introducing a relative interpretation in construction to weaken the stringency of the Abstraktionsprinzip interpretation, which proves no more than mere a partial solution. With an analysis on the four models on transference of Sache adopted by civil law tradition countries, a finding can be identified that distinctions lie in issues over retaining and abolishing of Trennungsgrundsatz and Abstraktionsprinzip. The alternatives facing the legislators of this land, therefore, bring up themselves into table by calling for an in-depth analysis based on reviews on significance of the principles of dinglicher Vertrag. Abstraktionsprinzip theory plays a narrow function in reality due to the innate flaw of this very institution and the function of the bringing up of the gemeinsame Fehlerquelle theory with its following mandatory statutory modifications. Taking the enormous cost caused by legislating such a complicated legal design, any legislator has to think twice for a cost-benefit analysis before a decision-making. The issues caused by conflicting interests of original title holder and of the third party deserve a case by case approach. Where the third party is merely the ordinary creditor of transferee of Sache, whether Abstract Principle shall be adopted is at the option of legislation; whatever the legislative choice is, shall not be used as arguments to defy or bolster Abstract Principle. Where the third party claims the title of object matter in question, which leads a confrontation with the original title holder, there emerges the real flaw caused by Abstract Principle as overprotecting the third party who is not bona fide one. It is recommended that Abstract Principle shall be superseded by new principle. One point should be clear that both the two principles can not be substituted reciprocally. However, with a further study, this thesis challenges this traditional wisdom by asserting the non-standing of such view. With a negative answer on Abstraktionsprinzip, the siginificance of Trennungsgrundsatz of dinglicher Vertrag lost its lion's share. The Trennungsgrundsatz of dinglicher Vertrag is not a matter of facts determining but a matter of value judging. A correct approach to determining the retaining/abolishing issues, therefore, is measuring and considering in terms of values criterion. Although Separate Principle has positive effects in terms of logic, legal implementation, and practical significance, the increase of transaction cost caused by Separate Principle is also an inescapable problem. On the other hand, denying the notion of Abstraktionsprinzip of dinglicher Vertrag, and replacing it with formalistobligationalism has its value which covers the merits of Separate Principle. The conclusion is upholding the Separate Principle is not a necessity any more. In sum, formalist obligationalism is the proper mode for us to follow. Under distinguishing principle, transference of Sache is due to the underlying transaction combined with a fulfillment of formal requirement. There can find no separate dinglicher Vertrag. The declaration of will intending the transference of Sache is embodied in the underlying transaction. The transference of Sache is caused concurrently by the will intending it and will to be bind by obligatory relation. Formalist obligationalism can not only apply to transactions concerning sales, barter and gift contracts but to circumstances where the creation and transference of Sache is dealt with. A negative attitudes against Trennungsgrundsatz and Abstraktionsprinzip of dinglicher Vertrag is not a denying of theory of dinglicher Rechtsgesch?ft as a whole. In cases like relinquishment and discharge of Sache, creation of obligation without means of juristic act, and separation of signing party from performing party of obligational contract, an affirmative recognition of existence of independent dinglicher Rechtsgesch?ft is necessary and helpful. Judged by formalist obligationalism as a reference, the provision of Article 51 has patent defects. The validity of unauthorized disposal of property through contract pending on the future ratification by party with authority is far from meeting the needs of real daily transactions and fails the aim of protecting legitimate benefits of both parties under contract. Additionally, this design will create inner contradictions between provisions of contract law. A suggestion is brought up by advising a universe recognition of validity of obligational contract concluded without authority. Make whatever the third party can claim a issue totally irrelevant to the validity of contract. Whether the third party's claim being foiled or fulfilled shall be at the disposal of several factors: whether there is ratification by authority and the subsequent acquisition of power of disposal, and the mental state as bona fide purchasing.