论民法上处分行为之独立性

Abstract

The concept of “Verfügungsgeschäfte” in German law is similar with the “act of disposition”. The establishment of the concept of “Verfügungsgeschäfte” and the doctrine of independence of Verfügungsgeschäfte reflecting the characteristics of German law are the great achievements of legislative practice of civil law and the success of law study in Germany. The rules and the concept related to the Verfügungsgeschäfte represent the principle of private autonomy in the market economy. In China, it is more than decade that the theory of Verfügungsgeschäfte has been argued since the beginning of the drafting of the Civil Code, but this result is still ambiguous now. In this essay, the authors holds an idea that the essential and original meaning of Verfügungsgeschäfte and the doctrine of independence of Verfügungsgeschäfte in Chinese civil law should be rediscovered and upheld. This essay consists of four parts. The first part presents a brief introduction to the concept of Verfügungsgeschäfte in Geman civil law and its exact meaning, and reveals its origin of Roman law through describing the evolution of the concept. Up to the end of 19th century when German Civil Law was drown up, the doctrine of distinction between Verfügungsgeschäfte and Verpflichtungsgeschäfte was accepted. But until the beginning of the 20th century that the precise interpretation of the Verfügungsgeschäfte was not brought to light. Later, this doctrine spreaded wide in the countries of civil law system such as Switzerland and previous ROC, etc. The concept of Verfügungsgeschäfte is attached importance in Japanese academy too, although it does not appear in Japanese Civil Law. But, what is the base or reason of distiguishing Verfügungsgeschäfte from Verpflichtungsgeschäfte? Some people think that it’s the distiction between real rights and claims, and other people think the difference of the effects of the lagel acts. This essay holds the latter, as both claims rights and dominance rights may be the objects of Verfügungsgeschäfte. So we can say that the distiguishing between real rights and claims cannot directly lead to that between Verfügungsgeschäfte and Verpflichtungsgeschäfte. In the second part, the authors discuss the relation between Verfügungsgeschäfte and right of disposition(Zuständigkeit des Verfügenden) and, further, various types of Verfügungsgeschäfte. The authors divide the Verfügungsgeschäfte into four types in accordance with the effects of Verfügungsgeschäfte. The third part is the main body of this essay. In this part, the authors introduce the present situation of Chinese legislation of civil law. There are three types of rules related to Verfügungsgeschäfte in Chinese law. The first, Real Right Law and Contract Law of China have set some rules about the legal acts which have substantial nature of Verfügungsgeschäfte, such as the transfering of earnest money and borrowing materials, giving up of rights and offsetting of debts, and performing obligation by third party, ect.. The second, there is a great number of rules in laws with the concept of Verfügungsgeschäfte. The third, there are some rules about legal acts analogous with the Verfügungsgeschäfte. The last part of the essay is the conclusion: the doctrine of independence of Verfügungsgeschäfte should beaccepted in China civil law. This conclusion is based on some reasons. The first reason is that the objective differences of the intention expressions should be recognized, and the second one, the principle of private autonomy, including the freedom of disposition of rights, as a legal ethic and legislative policy in market economy should be respected. What’s more, the recognition of the independence of Verfügungsgeschäfte is the logic request of the law.