基于体系方法对房屋多重买卖规则的清理——以已占有的未登记先买受人权利保护为中心

基于对房屋多重买卖的先登记者优先规则的反思,学界提出了无权处分论、知情对抗效力说等学说,以此衡平先登记的后买受人与已占有的未登记先买受人的利益.然而,相关学说未能较好地遵守比较法解释的基本标准,突破了民法体系维持的底限,不仅违背了民法实质主义意义上的体系强制要求,也不符合形式意义上的体系强制要求.较好的办法是利用既有侵权法规范,以侵害债权的恢复原状责任方式介入先登记者优先规则,化解登记公信力的刚性,在给体系造成最小损害的限度内,实现权利保护与体系维持的双赢.

Reconstruction on the Rules of Multiple Sales of House Based on Systematical Methods:Focus on the protection for former purchaser in possession without being registered

Academia proposed two kinds of theories described as unauthorized disposition and confrontation effect in case of knowledge,which were based on introspection to the priority rules for registrant in the rules of multiple sales of house. The purpose is to balance the interests between registrant as latter purchaser and former purchaser in possession. However,these theories don't conform with rule of comparative interpretation,and inevitably break the bottom line of system maintenance of civil law,which could be viewed as violations of compulsory requirements of system in two aspects of form and substance. It is a better way to make a win-win of right protection and maintenance of system with the lease damage to the system of civil law, with the application of the norm from Torts Law and intervening the priority rule of registrant with the form of liability of restore to weaken the public credibility of registration of real estates.