再談無權處分行為的效力－－兼論法釋［2012］8號第3條的理論基礎

Rethinking about the Validity of Unauthorized Disposition-- also on the Theoretical Basis of Article 3 of the Judicial Interpretation No. [2012] 8

在我國民法上，標的物所有權的移轉雖以交付或者登記為要件，但合同法關於買賣合同的規定即足以表明買賣合同不僅具有發生債權債務關係的效力，也具有引起所有權發生移轉的效力，故我國民法存在不承認物權行為獨立性的依據。在不能廢除無權處分規則的背景下，可以將無權處分所訂立的合同理解為合同的權利移轉效力待定，但其履行效力則不受影響，因而在當事人違反合同約定的給付義務時，應承擔違約責任。為回應現代交易的複雜性和階段化，要麼將法律行為區分物權行為與債權行為，要麼對合同效力作不同層次的理解。在中國法的語境下，以後者作為法釋［2012］8號第3條的理論基礎，也許是一種可供選擇的思維路徑。

In the Chinese civil law, although the delivery or registration is necessary for the transfer of ownership, the rules of the sales contract in the Chinese Contract Law sufficiently indicate that sales contract not only has the effectiveness to result in debtor-creditor relationship between the parties, but also has the effectiveness to lead to the transfer of the ownership. So there are evidences to derecognize the independence of Property Action in Chinese civil law. Because the rule of unauthorized disposition cannot be abolished, the ownership transfer effectiveness of sales contract is pending when the contract is made by the person who has not authorized disposition. But the rule of unauthorized disposition cannot make any impact on the effectiveness of sales contract to result in debtor-creditor relationship between the parties. In light of this theory, if any party violates the contract, he should burden the responsibility for breach of the contract. In response to the complexity and staging of modern transaction, either the transaction should be distinguished between Property Action and Obligation Action, or the effectiveness of contract should be distinguished to different levels. Under the context of Chinese law, maybe there are alternative approaches to understand the unauthorized disposition rule, which is the theoretical basis of Article 3 of the judicial interpretation No. [2012] 8.