财产法内部的区隔与关联——债法修改中的物权制度协调问题

Distinction and Association within Property Law——Coordination of Real Right Law in the Modernization of Obligation Law

债法修改中的关键问题之一是债法与物权法的制度协调。经由债法和物权法的区分,财产法内部出现了区隔。该区隔观念涉及有体物限定、抽象所有权、物权法定、物权行为等一系列重要制度的确立。但此种财产法区隔的观念在《德国民法典》的发展之中逐步被软化,《荷兰民法典》和DCFR虽然仍坚持财产法内部的区分而非完全融合,但使得财产法内部呈现出多元化的关联。这种关联并非仅仅是一种现象,而且是一种必然,并由此导致制度的诸多因应改变。

In the modernization of obligation law, one of the key issues is the coordination of real right law and obligation law. Division of obligation law and real right law leads to the distinction within property law. This concept relates to the establishment of some important rules, such as physical object as the object of real right, abstract ownership, humerus clausus principle and legal act of real right. But this concept has been softened with the development of the German Civil Code. The Dutch Civil Code and DCFR still insist on the division within the property law rather than complete unification of obligation law and real right law, but at the same time, multiple internal associations are emerging within property law. These associations are not only a phenomenon but also a necessity, which leads to many changes of rules in the property law.