先占制度研究
发布时间：2018-07-28 15:54
【摘要】：先占是自古罗马时期由来已久的传统民法制度，在国外已形成比较完善成熟的法条体系和判例，但在我国却被民法拒之门外，这不得不让人三思。在我国古代的律法中，并不鲜见先占制度的身影，很多朝代都有类似先占制度的规定，至民国时期更是借鉴国外法对先占制度有比较完善的规定，但是为何至新中国成立以来，先占制度就从我国法律体系中消失，这是符合新时代潮流还是不合理之举？本文主要就“先占制度研究”作为论题进行论证，结合我国现阶段社会生活中先占现象大量存在，而法律上却没有可以适用的条款，这其中的矛盾和冲突呼吁着先占制度的到来；我国的民法体系已经确立了物权制度，但作为物权制度中尤为重要的先占制度却迟迟不见踪影，这不仅造成我国民法体系的缺损也造成我国民事法律体系与域外相关法律制度的脱节，这十分需要我国确立先占制度来予以弥补。 我国迟迟不确立先占制度，有的学者列出了诸多原因和理由，而在现在，这些所谓的不确立先占制度的原因和理由都是不成立的，，先占制度的确立是顺应时代发展和完善民事法律体系的迫切需要。而在我国目前的法律环境和现实环境中，正存在着许多有利于确立先占制度的条件，在这种背景下，构建我国先占制度可谓是呼之欲出。由此，根据我国国情、社会经济发展状况和我国民事法律体系，设计出适合我国现状的先占制度正是题中之意。本文重点运用了历史分析法、比较分析法、价值分析法等研究方法，因地制宜，借鉴国外制度中适合我国先占制度构建的地方，分别对我国要构建的先占制度之法律性质、采纳的立法例、构成要件等问题逐一分析研究，并进行取舍和创新，在确认先占制度的法律性质为事实行为、分析出最适合我国先占制度的立法例为“二元主义”立法体例、结合资料分析出切合我国实际与法律要求的是“五要件”的构成要件说之后，力求构建出最适合我国现状、并与我国现有民事法律最为搭配的先占制度。
[Abstract]:Preemption is a traditional civil law system which has existed for a long time since ancient Rome. It has formed a relatively mature legal system and case law in foreign countries, but in our country it has been rejected by civil law, which has to make people think twice. In the ancient law of our country, it is not uncommon to see the pre-occupation system. Many dynasties had provisions similar to the pre-occupation system, and during the period of the Republic of China, there were more perfect regulations on the pre-occupation system from foreign laws. But why has it been since the founding of New China? Is the preemption system disappearing from our legal system in line with the trend of the new era or unreasonable? This article mainly discusses the "preemption system" as a topic, combining with the phenomenon of preemption in the current social life of our country, but there is no applicable clause in law. The contradictions and conflicts call for the arrival of preemption system. The civil law system of our country has established the real right system, but as an important preoccupation system in the real right system, it has not been seen yet. This not only causes the defect of the civil law system of our country, but also causes the disconnection between the civil law system of our country and the foreign relevant legal system, which needs our country to establish the preemption system to make up for it. Some scholars have listed many reasons and reasons for our country's delay in establishing the preemption system. Now, these so-called reasons and reasons for not establishing the preemption system are all untenable. The establishment of preemption system is an urgent need to adapt to the development of the times and improve the civil legal system. In the current legal environment and realistic environment of our country, there are many conditions conducive to the establishment of preemption system. Under this background, the construction of preemption system in our country can be said to be eager. Therefore, according to the situation of our country, the development of social economy and the civil law system of our country, it is the meaning of the topic to design the preemption system suitable for the present situation of our country. This paper focuses on the use of historical analysis, comparative analysis, value analysis and other research methods, according to local conditions, draw lessons from the foreign system suitable for the construction of our pre-occupation system, the legal nature of the pre-occupation system to be constructed in China, respectively. The legislative examples adopted, the constituent elements and so on, are analyzed and studied one by one, and the trade-offs and innovations are carried out. After confirming the legal nature of the preemption system as a factual act, the author analyzes that the most suitable legislative example for our preemption system is the "dualism" legislative style. Based on the analysis of the facts and legal requirements of our country, the author tries to construct the preoccupation system, which is most suitable for the present situation of our country, and which is the most suitable for the civil law of our country.
【学位授予单位】：西南政法大学
【学位级别】：硕士
【学位授予年份】：2013
【分类号】：D923
本文编号：2150797
[Abstract]:Preemption is a traditional civil law system which has existed for a long time since ancient Rome. It has formed a relatively mature legal system and case law in foreign countries, but in our country it has been rejected by civil law, which has to make people think twice. In the ancient law of our country, it is not uncommon to see the pre-occupation system. Many dynasties had provisions similar to the pre-occupation system, and during the period of the Republic of China, there were more perfect regulations on the pre-occupation system from foreign laws. But why has it been since the founding of New China? Is the preemption system disappearing from our legal system in line with the trend of the new era or unreasonable? This article mainly discusses the "preemption system" as a topic, combining with the phenomenon of preemption in the current social life of our country, but there is no applicable clause in law. The contradictions and conflicts call for the arrival of preemption system. The civil law system of our country has established the real right system, but as an important preoccupation system in the real right system, it has not been seen yet. This not only causes the defect of the civil law system of our country, but also causes the disconnection between the civil law system of our country and the foreign relevant legal system, which needs our country to establish the preemption system to make up for it. Some scholars have listed many reasons and reasons for our country's delay in establishing the preemption system. Now, these so-called reasons and reasons for not establishing the preemption system are all untenable. The establishment of preemption system is an urgent need to adapt to the development of the times and improve the civil legal system. In the current legal environment and realistic environment of our country, there are many conditions conducive to the establishment of preemption system. Under this background, the construction of preemption system in our country can be said to be eager. Therefore, according to the situation of our country, the development of social economy and the civil law system of our country, it is the meaning of the topic to design the preemption system suitable for the present situation of our country. This paper focuses on the use of historical analysis, comparative analysis, value analysis and other research methods, according to local conditions, draw lessons from the foreign system suitable for the construction of our pre-occupation system, the legal nature of the pre-occupation system to be constructed in China, respectively. The legislative examples adopted, the constituent elements and so on, are analyzed and studied one by one, and the trade-offs and innovations are carried out. After confirming the legal nature of the preemption system as a factual act, the author analyzes that the most suitable legislative example for our preemption system is the "dualism" legislative style. Based on the analysis of the facts and legal requirements of our country, the author tries to construct the preoccupation system, which is most suitable for the present situation of our country, and which is the most suitable for the civil law of our country.
【学位授予单位】：西南政法大学
【学位级别】：硕士
【学位授予年份】：2013
【分类号】：D923
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