動產善意取得制度之起源及發展

一、我國民法學者通說認為，動產善意取得制度，係源自於日耳曼法之「應以手護手」原則，其目的在於保護交易安全，降低交易上之調查成本，故打破羅馬法「無人得將大於自己之權利移轉於他人」之原則。然而，依本文之研究，日耳曼法並無因「善意」而「取得」之制度，而且Hand muss Hand wahren似乎亦非「應以手護手」原則。此外，日耳曼法與羅馬法相同，均有「無人得將大於自己之權利移轉於他人」之原則，但因日耳曼法就動產並無所有物返還請求之訴訟，故原所有人無法向第三人請求返還，縱使第三人係屬惡意亦同。二、動產善意取得制度，係日耳曼法與羅馬法之混血兒，其目的在於調和所有人與善意受讓人間之利益。此外，依法律比較學之研究，如果沒有動產善意取得制度，或限縮動產善意取得制度之適用範圍，並不表示交易就一定不安全，交易成本就一定提高。

關鍵字

動產善意取得制度；應以手護手原則；無人得將大於自己之權利移轉於他人之原則；保護交易安全；降低交易上之調查成本；所有物返還請求；時效取得；禁反言；（前）手應注意（後）手

並列摘要

In Taiwan, civil law scholars tend to credit laws related to the bona fi de acquisition of personal property as having its origin from Germanic law. ＂Hand muss Hand wahren＂ is commonly accepted by the Taiwanese law scholars to mean ＂Hand must warrant hand.＂ The purpose of bona fide acquisition laws is to protect the security of transactions and reduce the costs associated with investigations when transactions go awry. For example, when someone acquires a personal property in good faith but the transaction was not in fact a bona fide one. This breaks a rule of Roman law, namely, the maxim that ＂No one can transfer a greater right than what he himself possesses.＂ Nonetheless, according to this research, Germanic law does not allow good-faith acquisition. This research also suggests that, contrary to what is widely accepted, ＂Hand muss Hand wahren＂ does not mean ＂Hand must warrant hand.＂ The aforementioned maxim in Roman law is found in Germanic law as well; however, Germanic law does not allow the entitled owner to demand that personal property be returned from a third party who possesses it, regardless of how it came into his possession. As a result, the owner is unable to require that the possessor to return his personal property, even when there is evidence that the possessor did not act in good faith when coming into possession of the property. For example, an owner lends a middleman his horse, and then the middleman sells the horse to a possessor. However, the middleman actually had no right to sell the horse de jure. Good-faith acquisition is a hybrid of Germanic and Roman law with the purpose of balancing the legal interest claimed by the original owner as well as the good-faith possessor. According to researchers of comparative law, even in cases where good-faith acquisition is not inherent within the laws, the legal system may not intervene.