历史风貌建筑的权利保护与限制——以公共地役权为解决方案

Rights Protection and Prohibition of Historical and Stylistic Building——With Use "Public Easement" as a Solution Work

历史风貌建筑是反映某地区的时代特色、地域特色,具有一定艺术、科学价值,反映一定历史时期特色风貌的非文物建筑。历史风貌建筑是"人格利益受到公共利益制约"的特殊的私有物;现行立法以公法保护历史风貌建筑存在不足;以公共地役权作为解决历史风貌建筑的权利保护与限制的方案具有合理性。我国物权法应以"物权一般法"与"物权特别法"的模式对公共地役权进行构建,并在"物权特别法"上对公共地役权的取得、登记、终止、补偿等问题进行规定。

Historical and stylistic building is not cultural relics, but it has certain value of art or science, and reflects the characteristic styles of a certain era or region. Historical and stylistic building is a special res private that its personality interests are restricted by the public interests. Because of the inadequate protection by public law, it is more reasonable to use ＂public easement＂ as a solution work for the rights protection and prohibition of historical and stylistic building. The public easement system should be established in property law, based on the distinction between ＂property law in general＂ and ＂property law in special＂. The latter should stipulate the public easement system such as its acquisition, registration, termination and compensation, etc.