权利的结构：以商法为例
陈醇权利的结构：以商法为例
Structure of Right：Taking Business Law as an Example
期刊名称：《法学研究》
期刊年份：
作者：陈醇
单位：浙江师范大学法政学院
中文关键词：商法;权利;权利结构;合成;分解;单纯结构变动
英文关键词：right;structure of right;combination;decomposition;simple structural change
中文摘要：
权利的合成、分解和单纯结构变动是商法中的常见现象，这些现象呼唤一个权利结构方面的理论。结构是权利的重要参数，具有无限性、独立性和整体性等特征。权利的合成、分解和单纯结构变动既可能诱发权利的质变，又可能改变权利的功能，这两点已经被商法广泛运用。权利结构的设计应当是商法乃至整个私法的基本问题之一。
英文摘要：
Combination, decomposition and simple structural change of right are common phenomena in business law. These phenomena call for a new theory concerning to the structure of right, which has been ignored by both Structuralism and traditional right theories. Structure is an important parameter of right with the characteristics of infinity, independence, integrity, and so on. It is possible and necessary for us to design and select appropriate right structures. Combination and decomposition of right include quantitative and ordinal changes which may further induce qualitative change in the right. Simple structural change of right just includes ordinal change which may also induce qualitative change in the right. Right is scarce, but structural models of rights are unlimited in the theory and we can form sorts of rights with different qualities by structural design.Structural change of right may also induce functional change of the right. Combination and decomposition of right may produce new rights with new functions. For example, some new rights may have the mandatory, dominant and expansionary functions of the state power, or have the proliferation function of the capital property rights, or even have the strong transferrable function of credit derivatives and form a large financial derivatives market by this function. Simple structural change of right may also make certain rights have functions in promoting democracy, enhancing efficiency, protecting commercial safety and commercial fairness. We can also procure some expected functions of certain right system by structural design of right.Changing the nature or function of right by structural design have been widely used as two efficient methods in business law and a large number of structural models of rights have formed. Structural design of right should be a basic issue of business law or even the whole private law. The private law and business law in particular should not ignore such issue and should make great efforts to apply excellent structural models, optimize existing structural models, and create new models of right structure. A right structure theory should be added to right theories of the private law henceforth.
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