论我国用益物权的重构——以租赁权性质展开

On the Reconstruction of Chinese Usufructuary Right--Developed by means of leasehold

我国的用益物权制度的客体仅限于土地,而同为不动产的房屋却被排斥于用益物权体系之外,更不用说动产。其实,租赁权与用益物权都是使用他人之物,本质上没有区别,传统理论把租赁权归入债权之内的观点不能合理解释许多问题。通过对租赁权性质的重新考察可知,租赁权在性质上是用益物权而非传统理论上的债权。把租赁权引入用益物权体系中,可以重构我国现有的用益物权体系。

Nowadays Chinese usufructuary right system only confines to land. However the houses and the chattel are exclusive to the list of the objects of the usufructuary right, although the houses are real property. Both the usufructuary right and the leasehold are the legal methods to use other's property. There is no difference between the usufructuary right and the leasehold in essence. The traditional theory that regards the leasehold as one kind of jus in personam cannot explain many actual problems quite well. This essay rethinks the essence of the leasehold and holds that the leasehold is one kind of real right. We can set up a new usufructuary right system by introducing the leasehold.