“物权社会化”:一个大题小做的虚幻理论

On"Property Socialization":A Big Issue as Small and Illusory Theory

多数学者认为,基于"公共利益"等,"个人所有权受限制,他物权优位化"是"物权社会化"的主要内容。然不仅"个人所有权受限制而社会化"一说欠妥,且"他物权优位化"在理论和实践上亦难以成立。就"物权社会化"之理论渊源和基础来说,耶林和狄骥的观点多有不当,"公共利益和第三人权利"及"公平与效率"亦并不宜作为"物权社会化"之理论基础。该论是"仅看到法律的社会效果,却没认识到社会是‘物权’与‘物权法’之真正渊源,‘物权’与‘物权法’自从其产生之日起就一直为‘社会或公共利益’服务"的一个大题小做的虚幻理论。

Most scholars believe that the main content of ＂ Property socialization ＂ includes ＂personal ownership restrictions＂ and＂ priority of his property＂ based on the ＂public interest＂. However, not only＂ personal ownership restrictions and socialization＂ is defect, but also＂ Priority of his property＂ in the theory and practice is difficult to justify. On the origin and the basis of ＂ property socialization ＂ , the views of Jhering and Diji are inappropriate, ＂Public interest and the rights of third persons＂ and ＂fairness and efficiency＂ is also not appropriate as a base of ＂ Property socialization＂. The theory is＂ Only to see the law of social effects, but not to recognize that society is Property and Property Law＇ s real origin, Property and roperty Law has been for the social or public interest since the date of its formation ＂. ＂ Property socialization＂ ,What a big issue as small＇ illusory theory!