《民法典》第322条规定的添附规则之历史起源与比较法研究

A Research on Historical Origins and Comparative Law of the Accession Rules in the Civil Code

添附制度起源于对盗窃行为的生态主义善后处理。它的范围逐渐扩展,包括了河流添附等,但它与先占、加工、孳息的取得方式的界限长期不清。厘清的工作由中世纪和近代法学家完成。他们先把加工独立出来并造词命名,然后把孳息的取得独立出来,这样,添附的含义日益限缩。它是一项把"新物"设定为不可拆解以避免价值破坏的制度,把新物断给一个形成贡献人,并判定该人给另一贡献人补偿。尽管如此,一些迷恋罗马法的立法者仍采用广义的添附概念,另一些立法者则吸收了后罗马法时代的学术成果,建立了狭义的添附制度。我国《民法典》属于后者。但《民法典》第322条关于添附的规定来源于《民通意见》第86条,更多的是一项本土制度,与罗马法传统的添附存在差距,其中以确认可能存在意定添附为甚。尽管如此,在生物学添附中仍有意定添附的空间存在。

The system of accession originated from ecological way of dealing with thefts.Its scope gradually expanded to include river accretions,but its boundaries had long remained unclear with preoccupation,processing and means of obtaining fruits.The work of clarifying it was done by medieval and modern jurists.They first separated the processing and coined the word and then separated the acquisition of fruits from it so that the meaning of accession was increasingly limited.It was a system that made the"new thing"inseparable to avoid value destruction and it ruled that the new thing should be assigned to the one who contributed to its formation and that this person should make compensations to another contributor.Be that as it may,some legislators who were infatuated with the Roman law still adopted the concept of accession in a broad sense while some others absorbed the academic achievements in the post-Roman law era and established the system of accession in a narrow sense.China’s Civil Code belongs to the latter.However,the provisions on accession in Article322 of the Civil Code,which are derived from Article 86 of the Supreme People’s Court’s Interpretation on the Implementation of the General Principles of Civil Law,are more of an indigenous system and differ from the traditional accession in the Roman law,especially the confirmation of possible existence of the intended accession.Nevertheless,there is still some room for accession in the biological accession.