国家所有权民法保护的方法论反思与制度建构

The Retrospect of the Methodologies and Construction of the Theory on Civil Protection of the State-ownership

国家所有权民法保护的思想经历了特殊保护论、平等保护论和否定论这三种观点。分析这些思想的方法论,都有意无意地将私人所有权作为所有权的唯一类型;而所有权不仅包括私人所有权,也应当包括公共所有权。公共所有权具有不同于私人所有权的表现形式,国家所有权属于公共所有权的一种,因而其民法保护应当建构有别于私人所有权的思想和制度体系。国家所有权民法保护的核心是实现国家所有权的物权化,应当协调好其与公法保护的关系,具体方法包括按民事权利模式来设计国家所有权的行使,对造成国有资产流失的侵权行为追究民事赔偿责任以及按国有财产的功能规定不同的保护措施。

There has been three phases of the theory on civil protection of the state--ownership, namely： special protection, equal protection and denial of protection. The methodologies of these theories have something in common, that is, they all take the private ownership as the solitary ownership, while ownership consists of private ownership and public ownership through the study to the history. State--ownership belongs to public ownership, so we should construct its own theory and institution of civil protection. The relationship between the civil and public protection of the state--ownership should be well--handled. The specific methods includes design of the application of the state--ownership according to the civil rights pattern, imposing compensation liability to those who have made the loss of the state property and prescriptions of different protective measures according to the various functions of state property.