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合同的无权处分是民法范围内一个比较复杂的法律概念,从应用层面来看,其直接关系当事人的根本利益,从理论上看,其又涉及物权、取得及社会交易安全等问题。究其重要性主要体现在两个方面:一是无权处分行为主要针对当事人之间标的物所有权的转移,这种转移对于所有权人来说至关重要,直接影响到商品交易的安全与确定;二是无权处分行为主要涉及三方面的利益主体,即所有权人、无处分权人和受让第三人,标的物所有权的最后归属对于这三者的利益都影响巨大。如何能够平衡三者之间的利益冲突,最大限度地体现公平与正义原则,成为立法者必须考量的因素。本文以《合同法》第51条和《买卖合同司法解释》第3条为探讨的出发点,分析无权处分合同的理论结构、法律适用等相关问题,为无权处分合同制度体系的构建提供一个思考路径。
The right to dispose of a contract is a rather complicated concept of law within the scope of civil law. From an application point of view, it directly relates to the fundamental interests of the parties. In theory, it also involves such issues as property rights, acquisition and social transaction safety. First of all, the disposition of the right to disposition mainly aims at the transfer of ownership of the subject matter between the parties. Such transfer is crucial to the owner and directly affects the safety and determination of the commodity transaction. Second, the right to dispose of the property mainly involves three main stakeholders, namely, the owner, the dissentor and the transferee third party. The ownership of the final ownership of the subject matter has a huge impact on the interests of these three parties. How to balance the conflict of interests among the three parties and maximize the principle of fairness and justice have become the factors that legislators must consider. Based on the article 51 of “Contract Law” and Article 3 of “Judicial Interpretation of Sale and Purchase Contract”, this article analyzes the theoretical structure of non-punitive contract, the application of law and other related issues, and provides a Thinking path.