意思主义与形式主义对立的法理与历史根源  

Difference between Consensualism and Formalism;Legal and Historical Basis

作　　者：汪志刚[1] 

机构地区：[1]景德镇陶瓷学院

出　　处：《法学研究》2010年第5期79-92,共14页Chinese Journal of Law

摘　　要：意思主义是以一个不严格区分物权和债权且物上权利的绝对性尚未完成的财产法体系为基础的。其在法国和英国的首先形成,很大程度是其本国习惯法或判例法与自然法思想和自由主义激情相结合的产物,而非一种对公示的必要性有了充分、清晰的认识之后的理性自觉。意思主义和形式主义的对立本质上是财产权的相对性和物权的绝对性的对立在物权变动规则体系上的延伸,而后一对立又主要根源于二者分别承袭了不同的法律传统。The difference between consensualism and formalism is the most fundamental difference between various modes of real right alteration in modern law. According to consensualism, alteration of real rights needs only consensus of contract parties, and the form of public notification （delivery or registration） is not a constitutive requirement. Under the principle of formalism, alteration of real rights cannot come into effect unless public notification. In brief, the difference between consen- sualism and formalism is rooted in the difference between the relativity of property and the abso- luteness of real right, and the latter difference results from different legal traditions of Roman law and Germanic law. In the civil law system, principle of consensus first appeared in 1804 French Civil Code, and in the common law system, it first appeared in 1896 England Sale of Goods Act. From a historical point of view, principle of consensus in French and England law was mainly a product of the com- bination of customary law or ease law, philosophy of nature law and liberalism, but not a product of mature legislative technique. In other words, the legislators of French Code Civil and England Sale of Goods Act didh＇t have an adequate and general understanding of the function and necessity of public notification of property rights alteration while they made these laws. In legal perspective, consensualism is founded on a system of property law in which the right in rem and right in personam are not strictly distinguished and the absoluteness of right in res is not fully developed. Under this system, the nature of property right in res lies in the domination which means the direct dominate or control over a specific res by the holder, but not the absolute- ness which means the challenge or exclusion to rights of any others. To the contrary, the mode of formalism in German Civil Code is founded on a system of real right law in which the right in rem and right in personam are strictly distinguished. It not only inherits

关 键 词：意思主义 形式主义 公示 物权的绝对性 财产权的相对性 

分 类 号：D913[政治法律—民商法学]