物權法爭議問題之挑戰──常鵬翱教授《物權法的“希爾伯特問題”》之啟發

物權法面臨諸多爭議問題，其中債權物權化是早已存在者，至今爭議未歇，因債權物權化仍須受物權法定主義之限制，故法院于裁判上對某種債權創設物權效力時，就其物權化之要件事實及其效果，嚴密予以確定，不許以違反誠信原則、權利濫用原則等一般條款，任意衝破物權法定主義之框架限制;至電子科技之快速發展，帶來數據新型資產之定位及信息革命對公示機制之衝擊效應，則為物權法之新挑戰。對於前者，于未及立法規範前，習慣法、判例法之運用，當為最佳因應之道;對於後者，登記技術之創新，講求低成本、高效率，不重在如實反映物權狀態，然因物權公示內容之正確性，恰可降低交易之信息成本，實現資產有效配置之法律重要任務，故信息革命對公示機制之變革力道，似仍須有法律之配套，方能展現。

The Real Right Law has been confronted with many controversial issues, such as ''the propertization of obligatory rights'' has long been an issue and has not been settled. Since the propertization of obligatory rights must be limited by the principle of legality of right in rem, the court, when creating the effect of a real rights for certain creditor's rights in judgment, tended to strictly determine the essential facts and effects of its in rem rights, and it is not allowed to violate the principle of good faith and the principle of abuse of rights, and other general provisions to break through the framework limit of the principle of legality of right in rem at will. The rapid development of electronic technology has brought about the positioning of new data assets and the impact of the information revolution on the publicity mechanism, which is a new challenge to the property law. For the former, the application of customary law and case law should be the best way to respond before the regulations were legislated. For the latter, the innovation of registration technology emphasizes low cost and high efficiency, rather than focusing on true reflection of the status of property rights. However, because of the correctness of the content of property rights publicity, the information cost of transactions can be reduced and the legal task of effective asset allocation can be achieved. Therefore, it seems that the impact of the reform of the information revolution on the publicity mechanism still needs legal support to be shown.