论共有的法律适用——以《物权法》为视角

The Application of Property Law Regarding Co-ownership

物权法中的共有是指不动产或者动产的所有权共有,仅为狭义的共有。广义的共有尚包括所有权以外的财产权共有和准共有。将共有作狭义和广义区分,才能更好地衔接《物权法》与《民法通则》及《民通意见》中有关共有规定的关系。共有类型没有约定或者约定不明确时,应推定为按份共有。按份共有人约定不得分割共有物,而共有物经占份额2/3以上的共有人同意而被处分时,其他共有人有转让自己所持份额的权利。共有物分割请求权应视具体情形来确定其权利性质是请求权还是形成权。

Co-ownership in property law refers to the common ownership of realty or chattel, which is in its narrow sense. Coownership in a broad sense also includes common property rights, in addition to common ownership, and quasi-co-ownership. The laws regarding co-ownership set forth in the property law, General Principles of the Civil Law and Opinions of the Supreme People＇s Court on Several Issues Concerning the Implementation of the General Principles of the Civil Law will much better co-ordinate with a clear division of co-ownership between its narrow and broad senses. Should the type of co-ownership not be stipulated or clearly stipulated, it shall be considered ownership in common. Under ownership in common, when co-owners agree that the property is indivisible, while the property is disposed upon consent by co-owners holding two thirds of the shares, other co-owners are entitled to transfer their shares. The nature of the right to request for division of property being fight of claim or right of formation shall be decided on a case-by-case basis.