论日本借地法中借地上建筑物的命运与借地权的消长

On the Relationship between Buildings and Land Rights for Use in the Law for Leased Land of Japan

日本在建筑物与土地租赁权关系的问题上采区分建筑物与土地的立场,其借地权制度下的建筑物与土地使用权之关系呈现出精致而复杂的制度现象:在《借地法》时代认为一旦建筑物朽坏,则土地使用权即告消灭。而出于利益衡量的考虑,这种激进的立法在《借地借家法》中得以缓和,最终实现了法的支配性与私法自治之间的平衡。对于我国法而言,日本借地法中的法定更新制度、更新权制度与将土地租赁权纳入建设用地使用权体系的做法值得镜鉴。

In Japan, Buildings and Land are different legal objects, in its law for leased land, there are delicate and complex institutional phenomena in the relationship between buildings and land rights for use: in the period of "the Law of Leased Land", once the building is damaged, land rights for use was eliminated as well. And for the sake of measure of interest, "the Law of Leased Land and Leased House" revised some of the contents of "the Law of Leased Land", in order to achieve the balance between the dominance of law and the autonomy of private law.From the standpoint of our country, we can learn and imitate the institution of update by law, the right of update,and leased land right for building.