论物权法定原则的缓和及其实现路径——兼谈民法典物权编立法与《民法总则》第116条的衔接

Theory of Numerus Clausus Mitigation and Its Realization Path: On the Link between the Real Rights of Civil Code Legislation and the Article 116 of The General Civil Law

中国《物权法》第5条规定了严格的物权法定,这种封闭的物权体系导致实践中具有物权性质的权利难以得到物权法上的保护,同时也无法满足社会生活的需要,形成司法困局并阻碍了社会经济的发展,在体系上也与物权平等理念相矛盾。基于现实原因、体系原因以及类型思维的考量,物权法定原则都有缓和的必要。《民法总则》第116条虽重申了物权法定,但未来民法典物权法编仍有规定物权法定缓和的空间。物权法定缓和的途径是扩大"法"的范围,但应只限于习惯法,而不包括行政法规、规章、地方性法规、司法解释,其方式是在物权法编基本规则中加以规定。

The Article 5 of The Chinese Real Right Law is about the principle of Numers Clausus. In this closed system of real rights, the right to similar real rights can’t get protection from real rights law, new rights cannot be created to meet the needs of social life, which causes a judicial dilemma and hinders the development of social economy. In the real rights system, the principle of Numers Clausus is contradictory to the concept of equal real rights. Taking into account of reality, the system and the typology thinking, it is necessary to mitigation the principle of Numers Clausus. Although this very principle is highlighted by the Article 116 of The General Civil Law, there is still room for mitigation. This can be realized by expanding the range of the "law" that should be limited to the conventional law while the administrative regulations, the administrative rules, local regulations and judicial interpretations be excluded, and the means of mitigation is that it should be regulated in the basic rules of property law.