基于债务关系之支配华
金可可基于债务关系之支配华
Dominating Right Arising From Obligatory Relationship
期刊名称：《法学研究》
期刊年份：
作者：金可可
单位：华东政法大学法律学院
中文关键词：基于债务关系之支配权;物权性;绝对性;占有权
英文关键词：dominating right arising from obligatory relationship;the special nature of property right (Dinglichkeit);absoluteness (Absolutheit);right of possession
中文摘要：
东政法大学法律学院教授。 本文为上海市浦江计划资助课题“潘德克顿法学、《德国债法现代法》与欧盟侵权法一体化从德国侵权法的历史发展与最新动态看我国侵权法的应然体系与制度框架”（TS011116）、华东政法大学国际法律与比较法研究中心重点课题“潘德克顿法体系渊源论”（06GBF004）之中期成果。内容提要：基于债务关系之支配权是指基于持续性债务关系而产生的支配权，是债权物权化的类型之一。以交付或使用移转为界，此种债务关系在时间上可以分为纯粹债权阶段与债权与支配权并存的阶段。在后一阶段，法律关系上存在着债权与支配权的双重结构，使其既具有物权之部分特征，亦受到债务关系之制约。
英文摘要：
Dominating right arising from an obligatory relationship is a particular kind of rights arising from a lasting obligatory relationship, and is a type of“the reinforcement of the obligatory rights”(die Verdinglichung obligatorischer Rechte). It is really not true, as it was said usually, that an obligatory relationship can generate only obligatory rights or personal claims. As this article will set forth, the dominating right arising from an obligatory relationship has also some special characteristics which are typical for property rights (Sachenrechte).Property rights have two special characteristics: the domination (Herrschschaft) and the absoluteness (Absolutheit). After delivering the thing or surrendering the thing for use, the dominator in a lasting obligatory relationship can realize his intention unilaterally upon the thing and need not the cooperation of the obligator. Moreover, the possessor can also protect his possession or his right of possession from anyone’s infringement through certain legal remedies. Therefore, the dominating right arising from an obligatory relationship has also the special characteristics of domination and absoluteness to some extent, and has also some effects of property rights.Therefore, a lasting obligatory relationship can be divided into two phases. Before delivering the thing or surrendering the thing for use, there exist only obligatory rights, but after the so-said delivering or surrendering, there can exist both obligatory and dominating rights in such legal relationship. In contrast to the first phase, the second phase has two special qualities as follows: on one hand, a lasting obligatory relationship has still the classical effects of obligation, such as personal claims; on the other hand, its dominating right may have the effect against a third party. That is to say, such legal relationship can exist between obligee and a third person, and has broken through the traditional scope of obligatory relationships which can only bind obligator and obligee.The dominating right arising from an obligatory relationship is an unusual phenomenon in the civil law system. Although originated from an obligatory relationship, it is protected by the law to some extent as a property right. But it is also should be remembered that, the dominating right arising from an obligatory relationship is still bound by the obligatory relationship and is very different from the property right.
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