海峽兩岸物權法重要概念辨析比較

A Comparative Study on Key Concepts in Property Law of Taiwan China and the China Mainland

海峽兩岸同文同種，既合作又競爭。大陸現行之《民法通則》與2007年之《物權法》二者，與臺灣之“民法總則”以及2010年前後陸續修正通過之新“物權法”二者，在立法背景、法典結構、權利主體以及權利客體之面向，均有些差異，頗值互相借鏡或參酌，故有必要作一概念性之討論與比較。大陸《物權法》將散見於各種形式之法律規章中關於財產歸屬與利用之規定，統一於一部《物權法》中，從而形成“物權”觀念，其建樹值得肯定。就歷史淵源言之，海峽兩岸物權均以佔有為所有權之基本根據。佔有為物權變動之要件，尤其是動產物權之變動、不動產物權之變動等，更是如此。因此，探討物權之權利主體與客體，自有其必要性。

The language and the race are the same at the two sides across Taiwan Strait. Also, they work together and compete with each other. Consequently, from the legislative background, the structure of code, the legal subjects, and the subject of matter, there are differences not only between the couple of General Principles of the Civil Law currently enforced in China and Property Law adopted in 2007 but also between the couple of Taiwanese “Civic General Rule” and “Property Law” fixed and adopted continuously before and after 2010. These can be observed and considered together, and there are necessary discussions and compares in general. In Mainland, the rules spreaded in each type of law chapters which are regarding where the property belongs plus how it is used, are united in one main part of property law by Property Law. This produces the concept of property right that sounds like a law tree. This is affirmative. Historically, the property right at the two sides across Taiwan Strait both use holds as basic terms. Holds are main condition for the property right changed, especially the change of movable property right even the change of immovable property right. Therefore, it is necessary to discuss legal subject of the property, the property right of general objects and their comparision.