民法上之權益歸屬秩序

The Rights and Interests Attribution Order in the Civil Law

民法內確實存在著權益歸屬秩序。座落在民法規範計畫主幹上之權利（例如物權）與利益（例如占有），其歸屬尤其明顯。人們似乎很容易認知到這些歸屬。儘管如此，無論台灣或德國文獻，均並未明白清楚呈現出這項秩序。本文將歸屬規範區別成，積極與消極歸屬規範，積極歸屬規範可以是權利、法律行為或法律規定。侵權行為法及不當得利法是消極歸屬規範，保護已經形成之歸屬秩序。這些歸屬規範，亦是民法典之編纂邏輯：立法者不僅依抽象到具體之邏輯，以及依不同權利要件性質規定之關聯編纂民法典，亦依這項歸屬規範關聯編纂民法典。

Within the framework of Civil law, the attribution of rights (such as right to property) and interests (such as possession) is presented in an orderly manner and is seemingly obvious to be perceived. Yet despite this, the attribution order is rarely seen in either Taiwan or German literature. In this article, the author categorized the norms for rights and interests attribution into positive and negative ones. Positive attribution norms define how to acquire a right or an interest. Such acquirement must fulfill the requirements of a right, perform a legal act, or meet legal rules. Tort Law and Unjust Enrichment Law come under negative norms, which are designed to protect existent attribution order. In codifying the Civil Code, there are several principles needing to be followed, like the one to arrange first the abstract concepts then the concrete ones, and the one to classify the requirements of rights by nature. The above-mentioned attribution norms, in fact, are also a sort of such principles.