大陆法系与普通法系财产的经济分析

AN ECONOMIC ANALYSIS OF CIVIL VERSUS COMMON LAW PROPERTY

普通法和大陆法的财产制度(property)看似大不相同,前者强调被称作地产权(estates)的所有权片段,后者集中于整体性的所有权。然而,由于功能性的原因,这两大法系在整体轮廓上非常相似。本文以交易成本解释了这两种法系在实践上的相似性以及在财产与所有权风格(styles)上的差异。

Common law and civil law property appear to be quite different,with the former emphasizing pieces of ownership called estates and the latter focusing on holistic ownership.And yet the two systems are remarkably similar in their broad outlines for functional reasons.This Article offers a transaction cost explanation for the practical similarity and the differing styles of delineating property and ownership in the two systems.As opposed to the'complete'property system that could obtain in the world of zero transaction costs,actual property systems employ structures characterized by shortcuts in order to achieve property’s substantive goals of protecting interests in use.Overlooking this structure leads to the bundle of rights picture of property,even though property is a structured bundle of relationships.The architecture of property consists in part of four basic relationships,and a number of characteristic features of property automatically arise out of this architecture,including exclusion rights,in rem status,and running to successors.Where civil law and common law differ is in their style of delineation,which reflects the path dependence and network effects from a common mode of legal communication and initial investment in feudal fragmentation in the common law and Roman-inspired holistic dominion in civil law.This transaction cost explanation for the functional similarities but different delineation process in the two systems promises to put the comparative law of property on a sounder descriptive footing.