从地上权的发展看土地与地上物的关系

Review on Relationship between Land and Buildings from the Development of Superficies

建筑物依托于土地,并占据一定的空间;土地是立体的,包含一定的空间。土地与建筑物在自然属性上是密切结合的。而土地与建筑物的权利分配于不同主体,必然导致实现权利内容的冲突。地上权为土地和建筑物的不同的权利主体之间架起一座桥梁,平衡了土地所有者和需要土地建房的土地需求者之间利益,它的产生、发展经历了三个阶段,反映了土地与建筑物的权利构造的发展变化。如今,地上权与地上物所有权之间仍有无法协调之处。现行法律对此规定比较模糊。笔者拟从地上权的发展中探寻解决冲突的办法。

Buildings are based on land and occupy some space;the land is tri-dimensional and contend some space. Buildings are connected with land naturally. But rights of them are distributed to different subjects, which will necessarily cause conflicts. Superficies build a bridge across the conflict from the landowner to the building owner, and balance the interest between the landowner and the potential land demander, who needs land to base their house on. The history of superficies can be divided into three stages and all of them reflect the development of right construct of building and land .At present, there are conflicts that can be read in the related regulations, between superficies and building ownership. This article tends to seek the approach of solving the conflicts through tracing back the history of superficies.