债权与物权在规范体系中的关联
常鹏翱债权与物权在规范体系中的关联
Relationships between Obligatory Right and Real Rightin the Normative System
期刊名称：《法学研究》
期刊年份：
作者：常鹏翱
单位：北京大学法学院
中文关键词：债权;债的关系;物权;物务
英文关键词：Key Words:obligatory right;obligatory relation;real right;real obligation
中文摘要：
债权与物权是民事财产权的基本二分，它们因相对性和绝对性的根本差异而不同，但这不妨碍两者的规范关联。从权利发生的角度来看，它们有引导与发展的关
系，如买卖之债为所有权移转提供了条件。在权利存续的层面，它们有伴生与协力的关系，如在地役权设定后，供役地人对地役权人享有请求支付费用的债权。在特性交错方面，诸如相邻关系中的赔偿请求权等债权有物权的绝对性，并与物权一体并存，对物权受让人有约束力，存在融合和并存的关系。在规范适用上，物权与债的关系有同质趋向，可一体适用债法规范，显示出同质与同化的关系。对这些关系的辨析，有助于深化对物权法的定位、对象、规范、原则、危机等基本问题的认识。
英文摘要：
Abstract:As the basic distinction of the property right in the civil law, the obligatory right and the real right are very different in that the former belongs to the relative right, while the latter is the absolute one. Based on such distinction, the obligation law and the real right law are separate in the civil Law. However, the relationships between the obligatory right and real right cannot be ignored. In order to deepen the research of the orientation, objects, rules, principles and crisis of the real right law, we must grasp the whole situation of these two categories of property rights including the relationships between them. Firstly, viewed from the generation of the right, there exists a kind of guiding and developmental relevance. Uenerally, the obligatory right can lead to the generation of the real right. For example, sale contract is the base of the transaction of ownership. Conversely, the real right can also lead to the obligatory right, such as the legal effects in the Connection Rule, namely, the connection’s ownership gives the base of the compensatory claim. Secondly, on the level of the viability of the right, the accompanying and cooperative relation is prominent. For instance, after the setting of the servitude, the subject of duty has the expenses claim to the subject of right. Again, in the processing by virtue of employment, the employing contract and the ownership decided by the Processing Rule cooperate to balance the relevant interests. Thirdly, in the respect of interweaving specialties, the relationship of fusion and coexistence should be paid much attention to. In the real right law, there are many obligatory rights which have the absolute nature to restrain the real right’s assignee, such as the compensatory claim in
the Adjacent Relation Rules. According to its absolute characteristic, this kind of obligatory right looks like real right, which is named "real obligation" in theory. Furthermore, to achieve the goal of distribution of the real right, the real obligation must coexist with the real right as an organic whole. Finally, in the case of legal application, the real right has the tendency to be treated as a kind of relative relation, which shares the same characteristics with the obligatory relation, and therefore the obligation law can regulate the obligatory relation as well as the real right.
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