建筑物用益物权体系比较与建构思路

The Comparison of the Real Right of Buliding System and Its Construction

在《中华人民共和国物权法》的立法过程中,对于是否规定居住权和典权发生了激烈的理论争议,但最终该法未能确立这两种用益物权,由此形成的"用益物权法=不动产法=土地法"这一等式内在的逻辑机理和规范意义值得反思。比较法的考察表明,建筑物用益物权体系具有存在的必要性和可能性,我国建筑物用益物权体系应包括建筑物役权、用益权、居住权、典权和长期房屋租赁权。

During the legislation process of the Real Right Law of the People's Republic of China,there were heated theoretical disputes concerning whether habitatio and pawning right should be prescribed or not;eventually,no pro- visions were adopted thereon.Consequently,it appears that the law of real right is equal to that of real property,and further to that of land;however,the intrinsic logic and criterion of this equation is worth doubting critically.On a comparative basis the dissertation shows that it is essential and possible to establish formally the system of real right of buildings in China,and the desirable contents of the system include servitus praediorum urbanorum,usufruct, habitatio,pawning right and housing leasehold for years.