物之遗失与丧失占有——兼论具体公共空间内的拾得人判定

On Loss of Property and Loss of Possession:On Ascertaining the Finder of Lost Property in Specific Public Domain

遗失物须为丧失占有的非无主动产。基于遗失物拾得的立法目的,在遗失物的范畴内排除了无主物,即所有权人主动放弃占有的物。除此之外,遗失物的丧失占有无须考察占有人或者遗失人的主观意思。遗失之丧失占有的判断是管领力的事实判断,不以当事人的主观认识为准,而强调客观上控制力是否及于物。此外,拾得人的权利义务产生于对物的占有取得,因此遗失物之丧失占有与其说是原权利人的丧失占有,不如说是物上丧失占有。而物上是否存在第三人的占有是判断遗失物是否丧失占有的难点。在私宅中私宅主人基于对房屋的控制力而对物有管领力;但是在具体的公共空间内丢失的物,因为人员流动性和不确定性,因此不能基于所有人对空间的管领而认为其对物有实际管领力。换言之,具体公共空间内丢失的物,在被拾得或者被工作人员等取得占有以前亦为遗失物。但是工作人员基于其身份的特殊性而不能取得拾得人的权利。

Lost Property has to be a piece of property with ownership but under no possession. From a perspective of the intention of legislation on Lost and Found, ownerless property that is property whose owner voluntarily abandons his possession, falls outside the category of the lost property. Besides, the will of the possessor or the owner who lost the possession of the property does not need to be considered in observing loss of possession. The judgment on loss of possession is a factual judgment focused on the power of control over the lost property, which emphasizes whether the power of control reaches the lost property from an objective perspective while the possessor＇ s knowledge and will with respect to the lost property is out of consideration. Additionally, the rights and obligations of the finder over the Lost Property originate from the very act of possession. Therefore, loss of possession observes more about the fact that the possession of the property in question is lost than the owner who owns but loses the control of the property. The hardness of illustrating loss of possession lies in whether a third - party possession exists of the property in question. The owner of a private premise manifests his or her ownership and possession by occupation of the property, however, in Specific Public Domain, due to the flowing nature and uncertainty of the people, the ownership and possession can hardly be determined solely by the fact of occupation. In other words, an object which is lost or mislaid in Public Domain is still a Lost Property before being picked up or taken possession of by the working staff. However, the working staff shall not exercise the right which can be enjoyed by a finder.