随着十八届四中全会提出全面推进依法治国,依法治国方略被提到了一个新高度. “全面推进依法治国”,也就是要全面推进科学立法、严格执法、公正司法、全民守法,保证有法必依、执法必严、违法必究,将法治精神融入到国民行为的方方面面. 当前经济发展在全面推进依法治国的背景下,经济体制改革已经确定了社会主义市场经济体制,市场经济核心内容是以市场为中心,将市场作为社会资源配置的基本手段,它与依法治国是经济基础与上层建筑的关系. 所以市场经济的特征之一就是其法制性,它是指社会经济运行必须有健全的法制基础,生产者和经营者的经营活动依据市场经济的法律规范进行,健全的法律是协调和处理矛盾,体现公平的依据和准则. 为了维护市场经济的公平竞争必须有严肃健全的法制作为保障,否则市场经济的平等性、竞争性就会遭到破坏,任何经济活动都难以健康有序地进行. 而在市场经济中时常出现的无权处分中善意第三人保护问题,则更加需要在完备健全的法律体系下予以有效解决,以加速经济行为的发生,打通交易中资本流动的“中阻梗”. 然而在现有法律体系中,以合同关系为出发点进行立法的《合同法》,与以物权变动为出发点立法的《物权法》对于同一问题作出的规定却不尽相同,尤其是对于无权处分行为的规定,两者有很大的不同. 按照《合同法》第51条,无权处分的行为在经过权利人的追认之后或者无权处分人在事后能够取得所有权的,合同有效. 然而按照《物权法》第106条,倘若其他情况合法,第三人在受让不动产或动产时为善意,第三人即取得标的物的所有权. 由此可见两部法律关于受让人是否善意对无权处分是否成立的规定存在较大的矛盾. 本文以此矛盾为中心,力图寻找平衡点,探讨保护善意第三人正当权利的方法.
With the overall promotion of the rule of law in the fourth Plenary Session of the 18th CPC Central Committee, the strategy of governing the country by law has been referred to a new height. Comprehensively promote the rule of law, is to comprehensively promote the science of legislation, strict law enforcement, justice and universal law, guarantee law must be strictly enforced, and law breakers must be prosecuted, the rule of law into national behavior aspects. In the current economic development comprehensively promote the rule of law under the background of economic system reform has established the socialist market economic system, the economic market is the core content in the market as the center, take the market as the basic means of allocation of social resources, it is the relationship between economic foundation and superstructure and the rule of law. So the market economy is one of the characteristics of the legal system, it refers to the social economic operation must have a sound legal basis, legal norms business activities of producers and business operators on the basis of market economy, perfect law is to coordinate and handle the contradictions between fairness basis and criteria. In order to maintain fair competition in the market economy, a serious and sound legal system must be taken as a guarantee. Otherwise, the equality and competitiveness of the market economy will be destroyed. Any economic activity is difficult to carry out in a healthy and orderly way. People have no right to dispose the protection of bona fide third and often appear in the market economy, more needs to be solved in the complete legal system perfect, in order to accelerate the economic behavior, open up the capital flow in the transaction “obstructs”. However, in the existing legal system, to contract as the starting point for the legislation of “contract law”, and the change of real right as the starting point of the legislation of “property law” provisions for the same problem is not the same, especially the provisions for the unauthorized disposition, the two are quite different. In accordance with the “contract law” article fifty-first, unauthorized behavior after the ratification of human rights or the right to dispose of people in the post can obtain the ownership of the validity of the contract. However, according to the 106th item of the property law, if the other cases are legal, the third party is good at the real estate or chattel, and the third party is the ownership of the subject matter. It can be seen that there is a great contradiction between the two laws about the bona fide of the assignee and the establishment of the unauthorized disposition. This article takes this contradiction as the center, tries to find the balance point, and probes into the way to protect the right of the third people in good faith.