物上之债的构造、价值和借鉴

发布时间：2018-06-26 00:28

本文选题：债权与物权的区分 + 物上之债　；参考：《环球法律评论》2016年01期

【摘要】：物上之债是瑞士民法学理概念,它指向那些既有相对性,又能约束物权受让人的债。从产生依据上看,物上之债有法定和意定之分,无论是哪一类,物上之债通常与物权并存,并遵循法定原则、公示原则等物权法基本规范。物上之债与债权物权化的功能十分相似,但两相对比,物上之债的学理共识度更高,更易于学习和传授,更有解释力,规制机制更简单,比债权物权化更具有学理优势。基于该优势,并考虑我国民法学理对债权物权化尚未形成高度共识,再加上我国有不少与瑞士物上之债相似的法律规范,物上之债对我国有切实可行的借鉴作用。在借鉴时,重点参照意定物上之债,改进我国的预告登记制度,将其适用范围扩及法律允许当事人约定与物权相关的债。
[Abstract]:The debt in rem is a concept of Swiss civil law, which points to those debts which are both relative and binding to the transferee of real right. From the point of view of the basis of production, the debt in things is divided by law and will, no matter what kind, the debt of things usually coexists with the real right, and follows the basic norms of the law of real right, such as the principle of law, the principle of publicity and so on. The function of material debt is very similar to that of property right of creditor's rights, but by contrast, the degree of academic consensus of material debt is higher, it is easier to learn and impart, it has more explanatory power, the mechanism of regulation is simpler, and it has more academic advantages than real right of creditor's rights. Based on this advantage, and considering that there is not a high consensus on the property right of creditor's rights in our civil law, plus there are many legal norms similar to those in Switzerland, the debt on goods has a practical and practical reference role for our country. When using for reference, we should refer to the debt on the intended object, improve the notice registration system of our country, and extend its scope of application to allow the parties to agree on the debt related to the real right.
【作者单位】：北京大学法学院;

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