论私法公法化背景下公共地役权的立法路径

On the Legislative Path of Public Easement under the Background of Public Legalization of Private Law

罗马法学家乌尔比安提出公法与私法二元区分,在法学界沿袭至今,但进入现代社会以来,受现代社会价值观、经济、政治等因素影响私法有向着公法化的立法倾向。公共地役权的立法目的、法律性质、设立方式等不同于传统地役权的特征,在私法公法化背景下,公共地役权是私法公法化的典型代表,但各国对公共地役权的立法选择有较大差异,本文力图从私法公法化的背景、公共地役权的性质及两者之间的内在联系探究公共地役权的法律属性。鉴于此,公共地役权与私法公法化进程一致,故公共地役权应当由民法中的物权法制度进行规范,而非由行政法规范。

Roman jurist Urbian proposed a binary distinction between public law and private law, which has been inherited in the legal community to this day. However, since entering modern society, private law has tended to be legislated towards public law due to factors such as modern social values, economy, and politics. The legislative purpose, legal nature, and establishment method of public servitude are different from traditional servitude. In the context of private law and public law, public servitude is a typical representative of private law and public law. However, there are significant differences in the legislative choices of public servitude among countries. This article attempts to explore the legal attributes of public servitude from the background of private law and public law, the nature of public servitude, and the internal relationship between the two. In view of this, the process of public servitude and private law legalization is consistent, so public servitude should be regulated by the property law system in civil law, rather than by administrative law.