法律平等保护物权原则的位阶论

On the Rank of the Principle of Equal Protection of Real Right by Law

法律地位的目的及功能在于解决国家、集体、私人或其他市场主体是否被民法承认为民事主体的问题,即能否享有民事权利(含物权)和负担相应义务的问题。正因其只解决这关键之点,其平等性也较为彻底。发展权次之,但也属于资格的范畴,而非具体的民事权利,它所解决的问题是,某类市场主体仅可从事这样的业务,另类市场主体只能从事那样的活动,不得超越边界。市场主体取得物权的状况会呈现出差异,这与特定社会、特定国家的基本制度直接相关。法律平等保护物权的原则处于末端,市场主体的法律地位平等决定了市场主体的平等发展权,进而决定了法律平等保护物权的原则。没有市场主体的法律地位平等,就难有市场主体的平等发展权,就不会有法律平等保护物权的原则。法律平等保护物权的原则又反过来保障法律地位及发展权的平等性的实现。

Legal status is the most abstract and its purpose and function are to solve the problem of whether the state, the collective, the private or other market subjects are recognized as civil subjects by civil law, that is, whether they can enjoy civil rights(including property rights) and bear corresponding obligations.Because it only solves this key point, its equality is relatively thorough. The right to development is second to the legal status, but it also belongs to the category of qualifications rather than specific civil rights. The problem it solves is that certain types of market entities can only engage in such business, and the other types can only involve in that activities, and they all must not go beyond the boundary. It is very important to many companies, and it is no exaggeration to say that it is vital to their lives. For there are different forms of development, such as normal development, thriving growth, and "survival in the cracks", the status of market entities’ acquisition of property rights will show differences, which is directly related to the basic system of a specific society or a specific country. The principle of equal legal protection of real rights is at the end, because the equal legal status of market entities determines the equal development rights of market entities, which in turn determines the principle of equal legal protection of real rights. Without the equal legal status of market entities, it is difficult to exist the equal development rights of it, and then there is also no longer the principle of equal protection for property rights by law. The principle of equal legal protection of real rights also in turn guarantees the realization the legal status and the equality to the development rights.