霍菲尔德分析法学对占有、信托概念的新界定

New Conceptualization of Possession and Trust:A Hohfeldian Analytical Approach

基于霍菲尔德分析法学框架,占有乃准物上关系,因为占有人不能无条件对抗世界上全部人,但可附条件对抗世界上许多人。分析法学视角下的占有,展示了大陆法系与英美法系中所有权概念其实并无大分别。信托不只是合同,信托委托人与受益人都是定限财产权人,而受托人是信托财产所有权人。霍菲尔德分析法学可以有效回应知名英国私法学者、霍菲尔德反对者Penner新书中的两大批评。

A Hohfeldian analytical framework supports the view that possession is a quasi-in rem relationship, because a possessor does not have unconditional claims against everyone else in the world, but have conditional claims against many people in the world. Possession, through the lenses of analytical jurisprudence, exhibits that the concepts of ownership in civil law and common law are essentially the same. In addition, trusts are more than contracts and a trust settlor and a trust beneficiary are both holders of limited property rights, whereas a trustee owns the trust res. Hohfeldian analysis withstands the recent two critiques by J.E. Penner in his new book.