民法中的财产权竞合规范以优先规范为中心
常鹏翱民法中的财产权竞合规范以优先规范为中心
Norm of Property Right Over lapping in Civil Law：Pivoting on the Preferential Norm
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：财产权竞合;管制;自治;优先规范;顺位
英文关键词：overlapping of property rights;control;autonomy;preferential norm;sequence
中文摘要：
作为多重财产权并存的一种，民法中的财产权竞合以债权竞合、物权竞合和债权物权竞合为基本形态，其基本规范要素是管制强弱和时间先后，其规范不同于其他财产权并存规范，但又有相当的关联性。作为核心规范的优先规范以公示为基础，并引申出法定顺位规则，而权利人的意思自治能改变优先规范，由此产生顺位意定规则。
英文摘要：
Overlapping is a kind of concurrence of multiple property rights on the same object in civil law. Though the norms of overlapping differ from the other concurrence norms like trust, ownership reservation and so on, they have complementary and cooperative relationships. According to the positive law, there are two basic elements to adjust the overlapping of property rights, that is, the intensity of control and the sequence of time, and different norms established according to them will adjust different kinds of overlapping. As the focus of overlapping norms of property rights, the preferential norm which bases on publicity, especially registration and deduces rules of statutory sequences, is that the right publicized earlier prevails over the one publicized later. In the area of real estate property, the time of application for registration determines the sequence of rights. Once the sequence is determined, the right in front is prior to the right behind. If the former can cover the latter, for example both are mortgage rights, it can be fulfilled preferentially, which means the latter will remain in an alternative position and cannot be fulfilled until the former is fulfilled earlier. If not, such as the concurrence of usufructuary rights and real rights for security, the right behind can be fulfilled without prejudice to the right in front. With the two rules, the right behind can be established only after an agreement on it and registration. When the right in front is eliminated, the sequence of the right behind remains unchanged.The preferential norm can be changed by right holders and consequently the sequence of rights can be established by agreement, including abandon, exchange, reservation, promotion and direct equality of sequence, all of which show the freedom of right holders to dispose their rights. Thus the declaration of will of it should be consistent with the elements of legal action, the holder of the sequence should have right of disposition and registration is needed. When the sequences of two rights are the same by agreement, if the value of the right can be quantified, for example the object of a real right for security can be liquidated, the two rights can be repaid based on the ratio of each real right for security. If not, it should be determined by right holders.
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