论添附与添附物的所有权归属——对我国《物权法》所有权原始取得制度的一项补充

Concerning on the Appending and the Ownership of Something Appended——A supplement to the original acquisition institution of the ownership in our country's property Law

添附是罗马法以来民法物权中所有权原始取得的重要方式,但我国《物权法》对此却没有规定。传统民法理论中,有关添附的见解并不一致。我国民法理论中将加工、混合、附合都列入添附的范畴,但在社会经济生活中,甄别添附、加工、混合、附合各自的涵义和相互关系及其规范调整的社会现象却各有不同。一般来说,加工应当是独立的一种所有权原始取得制度,与生产无异;而所谓的附合、混合则完全可以被添附吸纳。依据各概念蕴含的不同含义拟定相关法律条文,不仅能有效对有关社会生活实际进行规范适用,而且还可形成简洁清晰的添附制度,此外也可促进完善我国物权法所有权取得方法,并于将来编纂民法典时参考,具有重要的理论价值和实践意义。

Appending is an important way in the original ownership in civil law real right since Roman law. However, there is no rules about it in the property law of our country. Views about appending varies in the traditional civil law theories. In our country＇s civil law theory, processing, mixing, and adhesion are all listed in appending. But by observating and reviewing the social economic practical life, we can find that processing should be an independent institution of original ownership, which is the same as production, through identifying their respective connotation of appending, processing, mixing, and adhesion ,the relationship among them as well as the social phenomenon adjusted by its norms. The so-called adhesion and mixing can be absorbed completely by appending. If relevant laws can be formulated according to this, then the related social life would be applied effectively. It can not only form a simple and clear appending institution but also can promote the methods of ownership acquisition of our country＇s property law. In addition, it can be for reference when we compile the civil code in the future which has an important theoretical value and practical significance.