地役权的功能泛化与本质复归

Regressing from functional generalization of easement to its original nature

地役权概念被滥用是当今学术环境下法律概念被滥用的典型之一。地役权概念实际上是一个具有地方性的法律概念,有其确定的法教义学意义并应恪守作为私法权利的规范意旨。不宜将基于比较法研究发现的、局部特征类似于地役权的多种异质规则全部归结于地役权范畴,从而使得这一私法概念膨胀为横跨公私法的万能法律工具。当前较为迫切的学术任务,是给地役权瘦身,尤其是要清除"公共地役权"这一似是而非的学术概念造成的地役权虚胖现象,让地役权回归其本质。

The concept abuse of easement is a typical example that legal concept is being abused in contemporary academic environment. Essentially, the concept of easement is a legal concept with native nature and certain meanings on legal dogmatics, which should strictly adhere to the purpose of right of private law itself. Nobody should do anything, for example, to incorporate heterogeneous rules with similar characteristic into easement category found in study of comparative law, so as to expand the concept of private law into a versatile legal instrument across public law and private law. Nowadays, it is an urgent academic mission to reduce its content, especially to clear bad effects caused by the specious academic concept ＂public easement＂, and to enable easement to regress to its original way.