论回首取得的法律效果

The Legal Effect of Reacquisition

摘要: 回首取得，是指无权处分人将动产转让给善意受让人后，从善意受让人或后续受让人处受让相同标的物的行为。从法律逻辑上讲，无权处分人似乎可取得所有权，但为了使权利人能够行使最全面的救济方式，应当认为无权处分人受让标的物时，根据公平原则，权利人的所有权恢复，有权请求返还原物。若标的物价值发生变动，在恶意安排或偶然复得情形下分别承担赔偿责任或享有必要费用返还请求权及不当得利返还请求权。若标的物之上设有担保物权，除担保物权人无权处分并回首取得的情形外，质权与抵押权随着所有权一同发生恢复。

Abstract: Reacquisition refers to the acquiring same movable property from the bona fide transferee or the subsequent transferee after the transfer of the movable property to the bona fide assignee. The acquisition of the ownership of the subject matter by the unauthorized person based on the sale contract conforms to the formal provisions and is in line with the law, however, in order to enable the obligee to exercise the most comprehensive remedy, it should be considered that when the subject matter is transferred to the unauthorized person, the obligee’s ownership is restored and the obligee has the right to request the return of the original property. Since the specific rules of civil law cannot provide the basis for the restoration of ownership, the issue of reacquisition should be adjusted by the principle of equity. The person who reacquires return the subject matter, shall bear the liability for compensation or enjoy the right of claim for the return of necessary expenses and the right of claim for the return of unjust enrichment respectively under the circumstances of malicious arrangement or accidental reacquisition. If there is a security right above the subject matter, the pledge right and mortgage right shall be restored together with the ownership, except that the security owner transferred with no right and reacquire.