无主物先占取得之立法研究

发布时间：2018-01-28 00:24

本文关键词： 先占无主物动产所有权　出处：《甘肃政法学院》2016年硕士论文　论文类型：学位论文

【摘要】：无主物先占制度最早可见于罗马法之中,是原始取得所有权的方法中最根本的一种。自先占自由主义的立法例在罗马法中被确立以来,随着时代的进步与发展,世界各国对于无主物的立法也发生了变化。先占自由主义发展出了先占权主义,并由以法国为首的众多国家所确认;之后又发展出了二元主义的先占模式,得到德国、日本等国家法律的认可。纵观国外立法,绝大多数对于先占制度都有规定,也就是说先占制度已经被世界上极大多数的国家所接受和认可。实际上,我国在古代也有关于先占的立法,并且一直发展延续至民国时期,然而时至今日,新中国法律却将先占制度拒之于法律之门外。这就直接导致在发生类似于乌木、狗头金等物的纠纷时,裁判者很难做出合法的判决。笔者认为,就其性质来说,首先,乌木并非矿物质元素的集合体,不能大规模的开发利用,不能将其认定为矿产资源;其次,乌木是由于自然力的作用而埋于地下数千年才形成的物,其与我国法律上规定的由于人为因素而埋藏于某处的埋藏物亦有不同之处,故其不属于埋藏物;最后,乌木并非是土地所自然产出的,而是由特定品种的树木埋于地下历经千年的地理作用所形成的,与我国法律上的天然孳息是截然不同的。所以,笔者认为将乌木的属性认定为无主物才是最正确的选择。而狗头金作为在地表被发现的物,必定不为埋藏物,其次,只有那么一块,并非是可以大规模开发利用的矿物质或元素集合体,故理应将其界定为无主物而非矿产资源。近几年乌木与狗头金纠纷不断,二者同为无主物,我国法律中无主物制度的缺失致使法官在对其所有权归属进行判决时,无法做到真正的有法可依,这也同样使法院判决的权威性受到质疑。为了解决这种无法可依的窘境,笔者通过对无主物先占制度进行深入的理论剖析,比较现代各国立法与我国古代关于无主物的立法,阐述了我国在将来必须要构建无主物先占制度的重要性及价值。此外,笔者还从循环经济与保护环境的角度论述了确立先占制度所能带来的益处,先占制度能够极大地促进拾荒者的积极性,使其积极地去捡拾废弃物,并对捡拾到的废弃物进行简单的分类做不同处理,这种行为不但能节约资源,大量促进资源的回收与循环利用,还能够间接的保护环境,避免污染的加剧。基于本文的比较分析,笔者更加肯定了我们急需将先占制度写入法律,以更好的对社会关系进行调整。而且在当下民法典编纂工作如火如荼的进行过程中,我们有必要对先占制度重视起来,借此机遇,完善我国民法典的编纂工作。
[Abstract]:The system of preemption without subject was first found in Roman law, which was the most fundamental method of acquiring ownership. Since the legislative example of preemptive liberalism was established in Roman law, with the progress and development of the times. The legislation of non-subject matter has also changed in the world. Preemptive liberalism developed preemptionism, which was confirmed by many countries headed by France. After the development of dualism preemption mode, by Germany, Japan and other national laws recognized. Throughout the foreign legislation, the vast majority of the pre-occupation system has provisions. That is to say, preemption system has been accepted and approved by most countries in the world. In fact, our country also has legislation on preemption in ancient times, and it has been developing until the period of the Republic of China, but to this day. However, the law of the people's Republic of China has rejected the preemption system at the door of the law, which directly leads to the fact that when disputes such as ebony and dog's head occur, it is very difficult for the referee to make a legal judgment. The author thinks that in terms of its nature, it is very difficult for the referee to make a legal judgment. First of all, ebony is not a collection of mineral elements, can not be large-scale development and utilization, can not be recognized as mineral resources; Secondly, ebony is buried in the underground for thousands of years because of the action of natural force, which is different from the buried object which is buried somewhere because of human factors in our country's law, so it does not belong to buried object. Finally, ebony is not produced naturally by the land, but formed by the geographical action of buried trees in the ground for thousands of years, which is quite different from the natural fruits in our country. The author believes that the ebony attribute is the most correct choice, and the dog head gold as found in the surface of the object, must not be buried, second, only a piece. It is not a mineral or element collection that can be developed and utilized on a large scale, so it should be defined as no main object rather than mineral resource. In recent years, there are many disputes between ebony and Goutou gold, both of which are non-principal. Because of the absence of the system of no subject matter in the law of our country, when the judge decides the ownership of his property, he can not really have the law to abide by. This also makes the authority of the court decision questioned. In order to solve this dilemma can not be relied on, the author through the lack of subject matter first system in-depth theoretical analysis. Comparing the legislation of modern countries with that of ancient China, this paper expounds the importance and value of constructing the system of preemption without subject in our country in the future. The author also discusses the benefits of establishing preemptive system from the perspective of circular economy and environmental protection. Preemption system can greatly promote the enthusiasm of scavengers and make them actively pick up wastes. This behavior not only can save resources, promote the recovery and recycling of resources, but also indirectly protect the environment. Based on the comparative analysis of this paper, the author affirms that we urgently need to write the preemption system into the law. In order to better adjust the social relations, and in the current civil code compilation process in full swing, it is necessary for us to attach importance to the preemption system, take this opportunity to improve the compilation of our civil code.
【学位授予单位】：甘肃政法学院
【学位级别】：硕士
【学位授予年份】：2016
【分类号】：D923.2

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