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“须防外观主义被滥用”专题讲座圆满结束 (The Lecture Appearicism Abuse should be Avoided)

发布时间:2019年09月30日 13:57 文章来源:法学院 浏览次数:

2019年9月27日周五上午8:30,教育部“长江学者”特聘教授、清华大学首批资深文科教授、民法研究中心主任、中国民法学研究会副会长崔建远教授应邀作为主讲人做客南京师范大学法学院,协同北京大学法学院教授、中国商法学研究会副会长、中国民法学研究会常务理事刘凯湘教授和南京师范大学法学院教授、中国法治现代化研究院研究员、中国民法学研究会常务理事、江苏省民法学研究会副会长黄和新教授,围绕“须防外观主义被滥用”这一现实主题,为全院师生演绎了一场别开生面的“铿锵三人行”。行敏楼410会议室挤满了百余名师生,享受这场学术盛宴。

首先,崔建远教授指出将“外观主义”理解为“按照事物的外观赋予法律效果”,是望文生义,滥用了外观主义,在有些场合导致了极不适当的后果。实际上外观主义主要运用于交易领域中当事人的意思、权利相冲突的场合,运用时还得受限。外观主义实乃法律基于特定理由才不得已按照外观特别是对该外观的合理信赖赋予法律效果,作为所有权绝对、实事求是、意思自治等原则的例外和补充。接着,崔教授分别就外观主义与物权变动、外观主义与强制执行、外观主义与表见代理(伪造、私刻他人印章以该他人的名义成立合同不能认定为表见代理)、外观主义与越权行为、基于合同进行的交易不能轻言外观主义、权利失效、合同解除通知的法律效果等诸方面系统阐述了外观主义的运用边界。

刘凯湘教授对崔建远教授的观点表示认同,并进一步指出:外观主义具有合理性,但是不能绝对化,外观主义一旦被滥用,就会导致价值打折甚至负面效应。刘凯湘教授还独到地将外观主义分为三种类型:权利外观主义、身份外观主义和事实状态外观主义,并分别加以举例和说明,并特别指出了外观主义对名义股东和被冒名股东适用的差别。

黄和新教授指出,外观主义的运用边界是一个理论价值和实践价值俱强的重大课题,特别是对矫正外观主义绝对化的司法倾向有重要指导意义,我高度认同、绝对赞赏崔老师对这个课题的率先研究和取得的成果。在黄和新教授看来,司法实践中外观主义被滥用有一定的普遍性,商事领域尤盛,譬如,在商票贴现纠纷案件审理过程中,往往以“票据无因性”为至高原则进行判断,忽略“交易关系和债权债务关系之有无及真实性”;又如,在保理合同纠纷处理过程中,裁判者只关注应收账款债权转让的手续是否“完备”(转让通知回执上债务人的签字确认),而忽视应收账款债权形成依据——基础合同的真实性,进而人为降低了保理人对基础合同及履行情况的审慎审查义务。

在交流互动环节,在场同学积极参与,提出了诸如“外观主义被滥用是否与民商合一的体例有关”、“如何看待冒名处分财产的行为”等问题,崔建远和刘凯湘教授结合案例给出了详尽的分析解答。

最后,黄和新教授对本次讲座做了简要总结,强调法科学生要多向崔老师等这样的法学先进学习,学习他们紧贴时代脉搏、及时关注审判动向,理论联系实际的作风,学习他们积极推动中国法治现代化进程的使命担当和严谨踏实的学风,夯实理论基础,培养问题意识,多做判解研究。

十点三十分,讲座在热烈的掌声中落下帷幕。本次讲座为同学们提供了一个与法学大家面对面接触、交流的机会,通过此次讲座,同学们对外观主义及其滥用的复杂情形有了更多的了解,收获颇丰。活动获得了全院师生的一致好评。

文:高佳倩;图:高佳倩

At half past eight on Friday, September 27,Cheung Kong Scholar Chair Professor of Department of Education, the first batch of senior art professors at Tsinghua University, Director of the Civil Law Research Center, Vice President of the Chinese Civil Law Research Association, Professor Cui Jianyuan was invited as the keynote speaker to a lecture at Law School of Nanjing Normal University(NNU), together with Peking University law school professor, Vice President of the Chinese Business Law Research Association, Executive Director of the Chinese Civil Law Research Association, Liu Kaixiang, and law school professor of NNU, researcher of the Chinese Institute of Rule of Law Modernization, Executive Director of the Chinese Civil Law Research Association, Vice President of Jiangsu Civil Law Research Association, Huang Hexin, held a lecture titledthe abuse of appearicism should be avoidedfor the students and faculties of law school. The conference room 410 was packed with more than 100 teachers and students who joined in this academic feast.

First of all, professor Cui pointed out that appearicism was understood by academia as the principle endowing legal effects according to objects’ appearance, which took the words too literally and had abused it. In some cases, this kind of understanding leads to extremely inappropriate consequences. In fact, appearicism is mainly used in the transactions where the meaning of parties and the rights conflict, and its application is limited. Appearicism arises when the law, for a specific reason, has to give legal effect in accordance with the appearance, especially the reasonable trust of the appearance, as an exception and supplement to the principles of absolute ownership and autonomy of will. Then, he systemically elaborated the boundary of the application of appearicism in the relationship between appearicism and apparent agency, appearicism and action beyond authority as well as in transactions by contract, invalidation of rights and the notice to dismiss contract.

Professor Liu agreed with Professor Cui and further pointed out that appearicism was reasonable, but it could not be applied everywhere. Once abused, it will lead to value discounted and even negative effects. Professor Liu uniquely divided appearicism into three types: rightsappearicism, identityappearicism, and factual condition appearicism. He gave examples and explanations separately, and pointed out the differences between the application of appearicism to nominal shareholders and impersonated shareholders in particular.

Professor Huang Hexin suggested that the limitation ofappearicism is a major topic of theoretical and practical value, especially for the correction of judicial tendency to take this doctrine absolute. He completely agreed and absolutely appreciated Cui's pioneering research and achievements on this topic. In the view of Professor Huang, appearicism abuse in judicial practice is common, and it is particularly prosperous in commercial field. For example, in the trade bill discount case, the court often verdicts based on the abstract principle of negotiable instrument, ignoring the existence and authenticity of debt. When solving factoring contract disputes, the judges only pay attention to whether the procedures for the transfer of receivable debts are complete, neglecting the basis for receivable account claims, the authenticity of the basic contract, thus artificially mitigating the factors’ obligation to cautiously review the contract and its performance.

The present students actively participated in the interaction, raising the questions as whether appearicism abuse was related to the combination of civil and commercial law, and how to deal with disposing property by impersonation. Professor Cui and Liu gave detailed analysis and answers in cases.

Finally, Professor Huang summarized the lecture briefly, emphasizing that law school students should learn from such advanced scholars as professor Cui to keep abreast of the tendency of the time, to pay attention to the trend of the trial, and to connect the theory with practice. The students should also learn their resolution to actively promote the modernization of the rule of law in China, consolidate the theoretical foundation, cultivate problem awareness, and do more judgment research.

At 10:30, the lecture ended in a warm applause. This seminar provided students with an opportunity to face-to-face contact with famous scholars. In this way, they gained a better understanding of the complexities of appearicism abuse. And the activity was praised by the teachers and students of whole school.

Writer: Gao Jiaqian

Photographer:Gao Jiaqian

Translated by Zhang Haoliang