论货币所有权之认定与救济

The Research on Determine and Rescue of Currency Ownership

所有权客体价值化之极端即为货币,囿于货币的高度替代性和消耗性,为了维护交易秩序,"占有即所有"是对货币价值占有中主体的权利义务做了强制性配置。丧失的货币一旦被替代或者消费,货币占有丧失人就无从追索原货币,因此当事人只能请求不当得利或者侵权请求权。如此并不能完全地保护货币占有丧失人的利益,为此可以借鉴英美法衡平规则的适用,赋予受损人对代位物的追及权或优先权。由此,丧失的货币就可以被作为拟制信托的财产,而货币占有人就是受托人,货币占有丧失人就是受益人,同时对于所丧失的金钱代位物,原货币占有丧失人也享有法定的优先权,可以选择适用。

Currency is the the object of ownership being extremely valued. Limited by its high substitutability and consumption,and in order to maintain transaction order, ＂ possession is ownership＂,which makes mandatory allocation to the rights and obligations of the monetary value of currency. Once the lost currency is replaced or consumed,the original owner has no recourse to the original currency,and can only claim for unjustified enrichment or infringement. However,this cannot fully protect the interests of the original possessor. In such cases,giving the damaged parties the right of recourse or priority to the subornation can be adopted like in western countries. In doing so,the lost currency would be looked as property of constructive trust,possessor trustee,original possessor beneficiary,who shall also be entitled to the legal right of priority to the subornation of lost currency.