问题 单项选择题

乙半夜行窃偷走了甲的一台彩电,一个月后,乙把彩电借给其好友丙使用,丙也是小偷,对乙的行为很了解。一个星期后,丙以自己名义将该彩电在旧货市场卖给了丁,丁当场付清价款并将彩电运回家。后来甲向丁主张自己对彩电享有所有权要求丁返还彩电。以下判断正确的有( )。  (1) 彩电为盗赃物,不适用善意取得制度,故丁不能获得彩电的所有权,应当将彩电返还给甲;  (2) 彩电是动产,适用一般的善意取得制度,丁已经支付完价款并实际占有彩电,取得了彩电的所有权,甲无权追回;  (3) 彩电为盗赃物,一般不适用善意取得制度,但由于丁是在旧货市场上买的,故丁仍能依照善意取得制度获得彩电的所有权;  (4) 丁对彩电的占有属于有权占有;  (5) 丁对彩电的占有属于无权占有;  (6) 丁对彩电的占有属于善意占有;  (7) 丁对彩电的占有属于无瑕疵占有。

A.(1)(5)(6)

B.(2)(4)

C.(3)(6)(7)

D.(3)(4)

答案

参考答案:D

解析:善意取得制度只适用于动产,又称即时取得,指无权处分他人动产的让与人,不法将其占有的动产交付给买受人后,若买受人在取得动产时为善意即可获得动产的所有权。在我国司法实践中,又区分不同的具体情况,做不同的处理。对于盗赃物、遗失物,第三人如果是从出卖同种物品的公共市场的买得的,仍然可以获得所有权,先前的所有人不能请求第三人返还原物。彩电属于盗赃,但是丁是在旧货市场买的,可以获得彩电的所有权。既然丁已经享有彩电的所有权,那么对彩电的占有自然为有权占有。

问答题

Due to the failure to pay the price of construction materials at a value of RMB 3 million yuan by Singen Construction Co, City Materials Co applied to the local people’s court to declare for its bankruptcy. The court approved the application after necessary review of the facts. At the end of the liquidation process, the liquidation committee listed the assets, debts and the various expenses of Singen Construction Co as follows. (i) It had total assets of RMB 19 million yuan. (ii) It had total debts and other liabilities in the amount of RMB 29 million yuan, including: (1) wages and insurance premiums payable of RMB 3·5 million yuan (2) VAT due of RMB 3·2 million yuan (3) the expenses of liquidation of RMB 300,000 yuan (4) the various debts due of RMB 22 million yuan. (iii) Among the bankruptcy assets, Singen Construction Co held five buildings which were duly registered with the local Registry Centre of Real Estate. The Certificate of Real Estate indicated that Buildings No. 1, 2 and 3 had been detained by the order of the local court for a dispute with a third party before the liquidation process started. However, Singen Construction Co had put these three buildings as things mortgaged to Steel Company for the debts payable at RMB 2 million yuan, without registration of the mortgage agreement with the Registration Centre of Real Estate. The current assessed price of the three buildings was RMB 2 million yuan. (iv) Buildings No. 4 and 5 had been mortgaged to Financial Company for a loan of RMB 3 million yuan and been duly registered with the Registry Centre of Real Estate. The current assessed price of the two buildings was RMB 2 million yuan. Required: Answer the following questions in accordance with the relevant provisions of the Enterprise Bankruptcy Law and the Property Law of China, and give your reasons for your answer:

(c) state the particular amount of assets to be allocated to City Materials Co. (4 marks)

问答题