论我国典权制度的历史变迁

The Study of the Historical Changes of the System of Dianquan

在中国民法史上,典权制度经历了一个曲折的过程:最初,典权制度以习惯法的形式存在于民间;清代,典权制度散见于大清律例、户部则例中;清末修律时, “一草”对它只字未提;民初,“二草”将典权制度列为专章,但与不动产质相含混; 《民国民法典》对典权制度进一步完善;新中国成立后,典权制度再次沦为习惯法。考察典权制度在民法史上的立法状况,关注其命运变化,分析其存在的独特价值,也许能为当前中国的法制建设提供一些借鉴。

The system of dianquan had undergone great changes in China's civil law.At first, it existed as a customary law.Thenit was scattered in the laws of The Qing dynasty.Later, law makers began to revise modern China's civil law.At that time, the system of dianquan was mistaken as real Aestate system and omitted.After a short time, law makers began to attach importance to it and later put it formally into civil law, but its real nature was still misunderstood.Finally, the civil law of the Republic of China made the system clear and perfect.However, the system of dianquan has been a customary law again after the foundation of the People's Republic of China. By studying the historical changes of the system of dianquan, we can see the necessity of rebuilding the syetem at present.