物上请求权行使的费用问题研究

A Study About the Costs of the Claim of the Right

在物权请求权行使费用负担问题上,学界提出了行为请求说、所有人责任说、容忍请求说、共同负担说等几种富有代表性的学说,这些学说之所以难以自圆其说,根源在于没有分清义务和责任的关系,进一步混淆了两者之间的界限。任何民事权利的行使,意味着相对人义务的负担。这是一种法定的义务,无论相对人有无过错,也不论其有无可归责事由,均不得免责,而责任则不同,在被害方的损失是由不可抗力等不可归责于相对方的原因所致时,相对方是可以免除其责任承担的。

There are several theories about the burden of the costs when the right owner exercising his right. Including the theory of the behaviour of the request, the owner＇s responsibility, the tolerance of the request and the share of burden. However, all of these theories have some defaults which do not distinguish the relationship between the obligations and responsibilities, so further confuse the boundaries of them. Actually,any party＇s exercise of the civil rights means the relative party＇s responsibility which is a legal obligation without require the fault or attributable of the other party. While responsibility has different content which the relative party could release from taking responsibilities when the damage of the victim side is caused by the unavoidable things such as force majeure.