大陸法系的物權類型封閉原則：歷史、演變與啟示

The Numerus Clausus Principle in Civil Law System: History, Evolution and Enlightenment

物權類型封閉原則是較為年輕的物權法原則，產生於19世紀的潘德克頓法學，並從19世紀下半葉開始逐漸影響歐陸各國以及東亞地區，形成了四種不同的規範表達模式。從物權類型封閉原則的本體來看，它僅僅是限制當事人的形成自由，並沒有限制物權類型的法律淵源。物權法定原則，是物權類型封閉原則在東亞的特殊表現形態，隨著習慣法和判例法在東亞各國被承認為物權類型的法律淵源，物權法定原則已經向物權類型封閉原則回歸了。

The numerus clausus principle is a young principle of property laws, which was created by the pandectists in 19th century and began to influence other countries in Europe and East Asia gradually since the second half of 19th century. Nowadays, the numerus clausus principle has four different legislative expressions. In essence, the numerus clausus principle only limits the party autonomy and does not limit the legal sources of property rights. The numerus clausus principle in East Asia, which limits the legal sources of property rights, is different from its mainstream in Europe. However, when customary laws and case laws are recognized as legal sources of property rights by countries in East Asia, the numerus clausus principle in East Asia has converged into the mainstream. From the point of external system, the numerus clausus principle is a logic derivative of the concept of Autonomie des Sachenrechts. From the point of internal value, the numerus clausus principle aims at promoting the circulation of property: the unitary dominium guarantees the alienability of property and the numerus clausus of ius in re aliena standardizes information and reduces transaction costs. Certainly, when registration system and reliance protection are improved gradually, the importance of the numerus clausus of ius in realiena declines significantly. However, the protection of alienability of property by unitary dominium still cannot be replaced. Whether to adopt the numerus apertus of ius in re aliena, we should take full consideration of its necessity, feasibility and the special circumstances of China.