我國多重買賣規則的檢討與重構

Review and Reconstruction on the Rules of Multiple Sales of China

我國司法解釋中的多重買賣規則採用“成立在先”、“先行付款”等標準以及“司法制裁論”的立場存在諸多問題，應檢討並重構。重構後的多重買賣規則應與我國獨特的物權變動立法模式相協調，與債權平等原則相統一，樹立自由競爭理念，尊重出賣人任意履行選擇權。多重買賣規則的結構為五層次的判定標準：物權優於債權、已處於物權取得的途中、出賣人的選擇、合同對價充分性安全性的考量、法官衡平裁量。

As there are many problems on the measures of the Establishment of Priority, the Advance Payment and Justice Theory which were used in the rules of multiple sales of China, should be reviewed and reconstructed. The rules of multiple sales reconstructed should coordinate with the unique pattern of property right change in China and be accordant with the equality on creditor's rights. At the same time, they should establish the idea of competition freely and respect the sellers to perform options arbitrarily. There are five standards on the structure of multiple sales: the property is better than the creditor's rights, the process of the property acquisition, the seller's choice, the contract on considering the adequacy security and the judge equitable discretion.