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根据物权行为和债权行为二分法的理论,大家对物权法第191条第二款有不同的看法。有的人认为该条隶属效力性强制规定,因此,未经抵押权人允许而售卖的行为,属于无效的行为,发生恢复原状的法律效果。有的人认为出卖抵押物属于债权行为,即使未经抵押权人同意的出卖行为仍然有效,但是否发生物权效力需要结合具体情况。以上两种说法都有其合理的地方,但是在司法实务中,为了交易的效率,权利的稳定,我们必须权衡利弊选出一种最为合理的做法。
According to the theory of the dichotomy between the real right behavior and the debt act, everyone has different opinions on the second paragraph of Article 191 of the Real Right Law. Some people think that the article under the force of mandatory provisions, therefore, without the permission of the mortgagee to sell acts, is invalid, the occurrence of the legal effect of restitution. Some people think that the sale of mortgages belong to the debt, even if the sale without the consent of the mortgagee still valid, but the existence of the effectiveness of the property need to be combined with the specific circumstances. Both of these statements have their reasonable place, but in judicial practice, we must weigh the advantages and disadvantages to choose the most reasonable one for trading efficiency and stability of rights.