论习惯对物权法定缓和之价值——以日本法理论与判例为考察视角

The Value of Customs on the Numerus Clausus Relaxation——Taking the theory and cases under Japanese law as a view to investigate

有关物权法定缓和的讨论,无论在理论界抑或实务界从未真正停止过。作为对该问题的研究方法,曾多有学者从习惯与法之关系上找寻解释抓手。其中观点大体可分为严格否定与适当开放两个方向。此两种理论之所以形成对立,皆因各自所生之时代背景有所不同。是以,对于该历史背景之考察或可为理解习惯与法之关系提供重要参照。同时,若以习惯缓和物权法定主义是否合乎法之应然目的,还需回归到具体个案进行衡量。对此,比较法上之审判经验不仅极具实证价值,亦可有助于增强政策意识。

The discussion on the relaxation of the statutory principle of real rights has never really stopped both in theory and in practice. As a research method for this issue,many scholars have sought to find an explanation foothold through exploring the relationship between customs and law. Roughly,there are two kinds of opinions:complete denial and conditional opening. There are two opposite views because they are produced in different age and different background. Therefore,an examination of the historical background thereof may provide an important reference for understanding the relationship between customs and law. It is also necessary to return to each specific case to measure whether relaxing the statutory principle of real rights by customs conforms to the purpose of laws. In this regard,comparative trial experience is not only of great empirical value,but also helps to enhance policy awareness.