物权法定主义的历史及内涵探析

On the History and Connotation of Numerus Clausus

物权法定主义是物权法的基本原则,自罗马法以来被大陆法系各国普遍奉行。但与此同时,该原则又饱受质疑,特别是近年来,对其批判之声更是不绝于耳。本文较为全面地考察了物权法定主义的历史,进而指出物权法定主义指物权的种类必须由法律规定,当事人不得任意创设,是为其内涵。文章旨在揭示物权法定主义之真实面目,为人们认识该原则继而评判其是非提供一点参考。

Numcrus clausus is the fundamental principle of real rights law, and it has been widely followed by the countries of the mainland law system since the law of Rome. At the same time, however, the principle has been disputed continuously. Especially in the recent years, the voice of criticizing has been becoming louder and louder. The paper investigates the history of numerus clausus overall, and then points out that the category of the real right must be stipulated by law, and not be established freely by the interested party. Such is its connotation. The paper aims at announcing the ture colours of numerus clausus, and providing a little reference for the people＇s recognizing and judging humerus clausus.