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关于我国物权变动模式的立法选择,学界所持观点不一。自《物权法》实施后,一些学者主张我国已形成一种以债权形式为主,意思主义为例外的物权变动模式,而有学者认为我国应选择物权形式主义的物权变动模式。然而,在民法中,选择何种物权变动模式不仅是物权法的重要问题,也事关整个民法体系构造问题。无权处分问题是贯穿民法体系的理论,对其效力的探讨均对应着不同物权变动模式。故在此思路上,本文通过对无权处分效力的分析来探析我国物权变动模式的选择。
As to the legislative choice of the mode of real right change in our country, the scholars hold different opinions. Since the implementation of the Property Law, some scholars have argued that our country has formed a change of property rights with the exception of the form of creditor’s rights and the exception of doctrine. Some scholars think that our country should choose the mode of real right change of real property formalism. However, in Civil Law, the choice of the mode of change in real property is not only an important issue of property law but also a question of the construction of the entire civil law system. The issue of the right to dispose of is a theory that runs through the civil law system and the discussion of its effectiveness corresponds to the different modes of change of real rights. Therefore, in this train of thought, this article analyzes the choice of the mode of real right change in our country through the analysis of the effectiveness of the non-authorized punishment.