论按份共有中应有份额的处分

发布时间：2018-08-21 07:27

【摘要】：我们将共有分为共同共有和按份共有,随着社会经济的发展,在共有的基本类型中,按份共有出现的情况将越来越多,在按份共有中如何将自己的应有份额处分的问题就显得尤为重要。按份共有中应有份额的处分理论性强,比较抽象,所以为了将抽象的理论能具体应用于实践,本文将以案例的方式来展开论述应有份额的处分。该案例主要涉及应有份额负担的设定、应有份额转让及优先购买权。所涉及的对共有物的分割,由于共有物的分割实际上也就是将其份额分出,所以在本文结尾将会有所涉及。其余与应有份额处分无关的部分案例本文将不再涉及。结合案例所涉及的问题,本文主要研究应有份额处分问题,第一部分的概述将作简单介绍。第一部分是应有份额处分概述,是本文的理论基础,主要介绍了按份共有的概念和特征,为下文应有份额的处分作理论铺垫。按份共有中应有份额与单独的所有权并无本质上的差别,按份共有不同于分别所有。各共有人的权利义务并不局限于其应有份额,而是及于共有财产的全部,应有份额是抽象的,并不具体特定,应有部分是按份共有人享有权利的基础。因此,应有份额是其研究的重点。下面的几章是本文的核心部分,是本文主要讨论的问题。处分包括法律上的处分和事实上的处分,因事实上的处分会损害其他共有人的利益,所以对应有份额的处分只能是法律上的处份。法律上的处分包括分出、转让、赠与。赠与时其他共有人不享有优先购买权。本文将主要论述应有份额转让将产生的优先购买权问题,包括优先购买权概念和性质、效力,优先购买权的构成要件,优先购买权的竞合,优先购买权的保护。应有份额的负担设定,虽然都有争议,但大多学者都认可可以以应有部分设定抵押,应有部分可以设立权利质权,但不能设立动产质权。多数学者认为应有份额不能单独设立用益物权,笔者赞同该种说法。对应有份额也不能出租。最后介绍应有份额的抛弃,应有份额的抛弃主要涉及抛弃的应有份额归谁的问题,为维护交易安全,避免纠纷的发生,应有份额抛弃后应归属于其他按份共有人所享有。
[Abstract]:We divide shared ownership into common and shared, and with the development of social and economic development, there will be more and more co-ownership in the basic types of shared ownership. The problem of how to deal with one's due share is particularly important. In order to apply abstract theory to practice, this paper will discuss the punishment of due share in the way of case. This case mainly involves the setting of due share burden, due share transfer and preemptive right. Because the division of common things is actually to divide their shares, we will deal with them at the end of this paper. The rest of the cases that have nothing to do with share punishment will not be dealt with in this article. Combined with the problems involved in the case, this paper mainly studies the problem of due share punishment, the first part will give a brief introduction. The first part is the summary of due share punishment, which is the theoretical basis of this paper. It mainly introduces the concept and characteristics of share according to share, which lays a theoretical foundation for the disposition of due share below. There is no essential difference between share per share and individual ownership, and ownership by share is different from separate ownership. The rights and obligations of the co-owners are not limited to their share, but to the whole of the common property. The due share is abstract and not specific, and the proper part is the basis on which the co-owner has the right. Therefore, due share is the focus of its research. The following chapters are the core of this paper, and are the main issues discussed in this paper. Punishment includes legal punishment and de facto punishment, because de facto punishment will harm the interests of other co-owners, so the corresponding share of the punishment can only be a part of the law. Legal sanctions include division, transfer, and gift. The other co-owners shall not enjoy the preemptive right at the time of the grant. This paper will mainly discuss the issue of preemption right which will arise from the transfer of due share, including the concept and nature of preemptive right, the effect, the constituent elements of preemptive right, the competition of preemptive right, and the protection of preemptive right. Although there are controversies in setting the share of the burden, most scholars agree that the mortgage can be set up in part, the pledge of right can be established in part, but the pledge of movable property can not be established. Most scholars think that should share can not set up usufruct right alone, I agree with this view. The corresponding share can not be rented out. Finally, it introduces the abandonment of due share, which mainly involves the problem of who should abandon the share. In order to maintain transaction security and avoid disputes, the abandonment of due share should be owned by other co-owners.
【学位授予单位】：山东大学
【学位级别】：硕士
【学位授予年份】：2015
【分类号】：D923.2

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