債權的絕對性

Contract Rights in Rem

本文主張：絕對權，係指享有「得以對抗不特定第三人侵害」的權利；相對權，則是「得向特定人主張（請求給付）」的權利。前者是權利保護的面向，後者則是權利內容的面向。二者既不互斥，也不在同一道光譜的兩端。
藉由權利人「請求受領的權能不生得喪變更」作為主要規範模式，輔以「回復請求權」的補充保護，債權同樣得以對抗任何不特定無權第三人。因此，債權也是一種絕對權。債權與物權的主要差異，從而不在「效力範圍」，而在「權利內容」。傳統見解之所以否定債權的絕對性，一方面源自於「債權權利內容」的可能誤會，一方面則是基於「對世保護機制」較為狹義的理解。
總而言之，債權同時具有絕對性與相對性。「債權相對——物權絕對」的二元對立，無法成立。

Traditionally, the distinction between contract rights in personam and property rights in rem has been a fundamental concept in civil law. However, this article questions whether these two categories are truly in opposition to each other.
The answer should be in the negative. This article argues that rights in rem refer to the rights availing ''against persons constituting a very large and indefinite class of people,'' while rights in personam are rights that the owner can ''claim against a single person.'' The former relates to the protection mechanisms of rights, while the latter pertains to the content of allocations. These two concepts are neither mutually exclusive nor situated at opposite ends of a single spectrum.
''The power to claim and accept'' as well as“immunity”serve as the primary protective model, supplemented by various ''secondary claims'' as the secondary form of protection, including, but not limited to, claims based on unjust enrichment and tort law. Contract rights can be similarly effective against others, precisely, against persons constituting a very large and indefinite class of people. Therefore, contract rights should also be classified as rights in rem. The fundamental distinction between contract rights and property rights lies, therefore, in the ''content of allocations.'' The traditional view that denies the classification of contract rights as rights in rem stems partly from a potential misunderstanding of the ''content of contract rights,'' and partly from an overly narrow interpretation of the ''third party protection mechanisms.''
In conclusion, contract rights possess both in rem and in personam characteristics. The binary opposition between ''contract rights in personam and property rights in rem'' does not hold. Thus, the reason why property law and contract law adhere to different principles, such as property law's acceptance of the numerus clausus principle and the principle of publicity, presents a critical issue that must be addressed in the future.