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《合同法》第74条赋予债权人以撤销权作为实体权利救济,维持债务人责任财产,但立法未明确规定该条中“无偿转让财产”行为性质。基于债物二分体系,物权行为和债权行为是两个独立的法律行为;根据债权人行使撤销权的判断标准,两者都可能引起对债权的损害,理论上将其理解为债权行为或物权行为都有可取之处。本文主要以北京市三中院审判实例为借鉴,从司法实践角度辨析该行为性质,体现其应作为物权行为的审判思路与法理依据。
Article 74 of the Contract Law gives the obligee the right of withdrawal as an entity right remedy and the debtor’s liability property, but the legislation does not clearly stipulate the nature of the act of “transferring property without compensation” in the article. Based on the dichotomy of debt, the act of real rights and the claim of debt are two independent legal acts. According to the judgment standard of the creditor exercising the right of revocation, both of them may cause the damage to the claim, and in theory, they should be understood as the debt or property There are merit in behavior. This article mainly takes the trial instance of Beijing No.3 Intermediate Court as a reference, analyzes the nature of the act from the perspective of judicial practice, and reflects the judicial thoughts and jurisprudence that it should act as the real rights and actions.