刍议典权

A Primary Discussion on the Pawnage Right

典权是我国的一项固有法制度。现存完整的规范典权的法令发布于唐中叶,明清两朝律典有关典权的基本律文的内容完全相同。典权为用益物权,有担保的因素,还有债权的性格。典权的风险负担需要根据本国实际情况在立法上加以规定。在我国,典物因不可抗力灭失,典权人的典权和出典人的回赎权均告消灭,而典物重建是典权人的权利。我国大陆的典权实践基本上遵行民国时期的有关民法规则。中国典权制度的未来发展完善取决于典权的形式理性和价值理性。

Pawnage right is a particular institution of the Chinese native laws. The earliest existing written regulation of pawnage right appeared in the middle of Tang Dynasty. The contents of pawnage right in the two penal codes of Ming and Qing Dynasties were the same. Pawnage right is not absolutely a sort of usufructuary right. The function of pawnage right also involves not only that of secured property rights but also creditors' rights. Allocation of risk on the pawnage right shall be stipulated by statute in accordance with the real situations. When, in China, the subject matter of pawnage right perishes by reason of force majeure, both the pawnage right and the right to redemption are extinguished, while the right to reconstruct the subject matter is on the party who had the pawnage right. The practice of pawnage right in China's Mainland almost follows the relevant rules established in the Nationalist Period. The development of pawnage right in China depends on the value rationality and formal rationality of pawange right.