论物权法的功能与价值

Functions and Values of the Law on Rights in rem

物权法的功能与价值是物权法的基本理论问题。我国物权立法以定分止争、物尽其用作为立法目的,却又采用物权法教科书体例,致使《物权法(草案)》在功能与价值上产生了不可自解的矛盾。立法如何认识社会生活与物权法的关系,在物权法的价值与功能上起着决定性作用。一部以财产归属为中心的物权法,对中国社会而言并无多大价值,传统的物权法和物权理论必须变革。我国物权立法应按大陆法系民法的思维方式以物权法为主体整合英美财产法的内容,使中国物权法真正成为现代社会的财产基本法。

A basic theoretical question concerning the law on rights in rem is its functions and values, Taking the functions of clarifying ownership, resolving dispute and making the most appropriate use of things as its legislative purpose, the Chinese Draft of Law on Rights in rem, however, has adopted the style of textbook, thus resulting in some conflicts in terms of the functions and values of the Draft. An ownership - centered law on rights in rem may not be of great worth to the Chinese society, yet the traditional law on and theory of rights in rem need to be reformed, In drafting the law on rights in rem in China, we should follow the mode of thinking of civil law under the continental legal system, that is, taking the law on rights in rem as the main part, while integrating the contents of Anglo - American property law, so to make the Chinese law on rights in rem a truly basic law on property in a modern society.