物权法定原则缓和之质疑

Doubts on Moderation of Real Statutory Principle

物权法定原则中的种类法定和内容法定不能一体对待,内容法定仅仅是法律对物权内容的轮廓式规定;主张以习惯法对物权法定原则进行缓和的观点,在理论上和实证上并没有切实的根据;物权法定原则固然过于刚性,但其刚性可以由民法相关规定加以缓和。

In real statutory Principle, the principle that categories of estate ownership must be defined by law is not equal to the principle that the right of estate ownership must be defined by law. The latter one just generally stipulates the power of estate ownership. The idea that real statutory principle must be moderated by usual practice is not theoretically and practically supported. Although real statutory principle is too rigid, its rigidity can be improved by the stipulation in civil law.