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我国物权区分原则随着物权法出台,已从理论走向法律化。但是,我国学者设计的物权区分原则是在借鉴德国区分原则的基础上建立的,其理论背景是物权行为理论与负担行为、处分行为的划分理论。这种理论背詈与我国民法传统理论、立法与实践并不一致,也与我国债权形式主义的物权变动模式不相协调。物权法第十五条在法律上正式确立了我国物权区分原则,但其立法理由不明。为了准确适用物权区分原则,有必要对这一原则的理论问题重新进行讨论,并对区分原则的含义或内容作出明确的界定。笔者以为,理论上,应当以法律行为与事实行为的区分作为物权区分原则的理论依据:物权区分原则的含义应当是多层面的,主要包括:物权变动的原因与结果的区分;原因行为与结果行为的区分;原因行为效力与结果行为效力的区分。
With the introduction of real rights law, the principle of distinguishing real right in our country from legal theory to legalization. However, the principle of distinguishing the real right of our country’s scholars was established on the basis of the principle of German distinctions, and its theoretical background is the division theory of real rights and behavior and the act of disposing. This theory is inconsistent with the traditional theory, legislation and practice of civil law in our country. It is also incompatible with the pattern of change in real rights of our country’s claims formalism. Article 15 of the Real Right Law formally established the principle of separation of real rights in our country from law, but its legislative reasons are not clear. In order to accurately apply the principle of distinguishing the real rights, it is necessary to re-discuss the theoretical issues of this principle and make a clear definition of the meaning or content of the principle of distinction. In my opinion, in theory, the distinction between legal acts and factual acts should be taken as the theoretical basis for the principle of distinguishing the real right from each other. The meaning of the principle of the deed of real right should be multi-level, including: the reason of the change of real right and the difference of the result; The distinction between behavior and result behavior; the distinction between cause and effect behavior and result and effect.