论文部分内容阅读
登记公信力在外观理论和国家公信力理论的法理基础上完成了理性塑造。就体系而论,登记公信力与物权变动模式无涉,即使置于公信力场景之中,物权变动模式仍可以自由构造。鉴于登记公信力之丰富内涵,其在设计使用上应与动产善意取得加以区分,以获得独立地位。为形塑公信力的妥当强度,在对其进行真实性审查时应坚持“相对审查主义”标准,同时引入保险和同业保证机制,以保证真正的权利人获得充分赔偿。此外,在立法上,对登记公信力应采取“法定公信力”模式,摒弃“类推公信力”模式,并辅以“相对公信力”类型化的规定。
The credibility of registration has been rationally shaped on the basis of the appearance theory and the jurisprudence of the national credibility theory. As far as the system is concerned, the credibility of registration and the mode of change of real right are not involved. Even if placed in the credible scene, the mode of real right change can still be constructed freely. In view of the rich connotation of the credibility of registration, its design and use should be distinguished from movable goodwill in order to gain an independent status. In order to shape the proper strength of credibility, we should adhere to the standard of “relative censorship” when conducting a true review of the credibility, and at the same time, introduce insurance and inter-bank guarantee mechanisms so as to ensure that the real right holders are fully compensated. In addition, in the legislation, the model of “statutory credibility” should be adopted for the registration of public trust, and the model of “analogy of credibility” should be abandoned, supplemented by the type of “relative credibility”.