财产法的体系演进

The Evolution of the Property Law System

国内学者通常将财产与财产权当作同义语使用,这种用法本身是不符合法理的。财产之上并不当然成立财产权,财产与财产权不分的根源,在于法益概念被遗忘所导致的"唯权利论"。历史考察表明,物权与债权只是财产的一部分,"物/债"二分注定是一个阶段性的认识成就,其实质是法律效力的"绝对/相对"二分。法益即法所保护的利益,按其内容可分为人身法益和财产法益两类。按义务人的范围与义务内容的不同,可将财产法益分为绝对财产权、相对财产权和未上升为权利的财产法益三类。财产法的称谓可以整合绝对财产权、相对财产权和未上升为权利的财产法益的保护体系,兼顾稳定性与开放性。

Domestic scholars usually use property and property right as synonyms, which is not in accordance with legal principles and logic. We cannot conclude that there is a property there is a property right. The reason why property and property right are not identical is that the concept of legal interest is forgotten, which leads to the theory of taking only right as the object of legal protection under civil law. The historical investigation shows that the real right and creditor’s right are only part of the property, and the dichotomy of “things/debts” is bound to be a periodical cognitive achievement, and its essence is the “absolute/relative” dichotomy of legal effect. Legal interest is the interest protected by both lex lata and lex ferenda, which can be divided into personal legal interest and legal interest of property. According to the difference of the scope of the obligor and the content of the duty, the legal interests of property can be divided into three categories: absolute property rights, relative property rights and legal interests of property which have not been ascended as rights. The appellation of property law can integrate the protection system of absolute property right, relative property right, and legal interest of property which has not been ascended as rights, and give consideration to both stability and openness.