统一和分离:罗马法所有权观念的演变

Fusion and Fission: Evolution of Ownership Concept in Roman Law

所有权的概念蕴含丰富的意义。作为现代大陆法系所有权观念的源头,罗马法回应了体系化和社会现实的要求,通过对规范目的、立法技术、价值取向和功能等方面不断的完善和选择,确定了现代意义的统一所有权概念。本文从完全所有权和分割所有权的对立传统入手,进而分析了所有权在法典中的地位、所有权的归属价值和利用价值的冲突、以及所有权的自由和义务的调和等问题,揭示了私法上所有权概念的不同面向。

The concept of ownership carries rich significance. As the source of ownership concept in the modern continental law, the Roman law responds to the requirements of the systematization and social reality. Through the constant improvement and selection in the regulatory aims, legislative technique, value orientation and functions, the Roman law establishes the uniform concept of ownership. This article starts with the contrary tradition in the complete ownership and split ownership, and then analyzes the status of ownership in the code, the conflict between its value of ascription and its value in the utilization, the adjustment of ownership＇s liberty and its duty, demonstrating the various aspects of the concept of ownership.