非典型物权类型松绑的功能分析——以昆山纯高案为例

Liberalizing Numerus Clauses: A Functional Analysis

我国物权法订定时仿照德国等民法法系对物权的内容和数量进行了限制,法律上排除了当事人自行创设物权的可能。但因经济发展对制度产生新的需求,金融创新与监管之间的紧张关系迫切需要创设新的物权类型加以缓和。人民法院在民商事案件审理过程中出现新的标志性案件,通过保护和尊重当事人意思自治间接的创设了新物权。我国物权法对物权法定规定过于严苛,应当允许法院在判决中通过合理的司法推理方式保持物权数量的最优化,而信托提供了物权放松的合理分析框架。

When Property Law was introduced in 2007,China's Mainland followed the civil law tradition of numerous clausus after Germany and Taiwan,which to some extent oppresses the discretion of parties to create new types of rights in rem. The ever- increasing demand for new instruments due to the economic booming together with the tension between the financial innovations and financial regulations urgently call for relaxation for property rights. People＇s Courts have adjudicated a couple of landmark cases underlining potential conflicts between practice and property laws,which are especially worth further theorization from functional perspective.This paper is convinced that judges have been creating new rights in rem and liberalizing numerous clauses by intent- serving,rather than intent- defeating way of reasoning. Therefore,it suggests that the judges should strike a delicate balance between the cost and benefit of each new property right to the parties therein and to the society as a whole before they start the relaxation of rights in rem. Trust,among those tools,provides a feasible analytical framework.