论"法律未作规定的,符合物权性质的权利,视为物权"条款之合理性——兼与梁慧星先生商榷

"法律未作规定的,符合物权性质的权利,视为物权"之条款可谓我国物权立法过程中的一大创新。但是,因被认为突破和违背了传统的物权法定原则而遭质疑,最终未能得到物权法之采纳。实际上,该条款并未违背物权法定,而是为物权法定之缓和提供了一种全新的思路,其最大的缺陷在于物权性质的不明确,导致实际认定何种权利属于物权时存在困难。物权法不应轻易地抛弃该条款,而应对其加以完善,即对物权性质作出符合本国国情的科学合理的界定,使之更适于实际操作,充分发挥积极作用,并成为中国物权法之亮点。

Defense for The article That The Right According With Quality of Real Right Should Be Regarded as Real Right——Discuss with Mr Liang Huixing

The article that the right sccording with quality of real right should be regarded as real right in the draft of real laws has been bowdlerized after much argument,the dispute of which is whether it violateor break the traditional Principle of Real Right Legal.This reflects the different attitude which the legislators and the academe have towards Principle of Real Right Legal and buffer to the principle.Although the new real law doesn't accept the articale,it still has great significance of theory and practice.In fact,as long as the legislation set quality of real right as a law conforming to the state's actual conditions,the right sccording with quality of real right would be acknowledged by legislation through the legal quality of real right,so it won't conflict with the traditional Principle of Real Right Legal.In addition,the article provides a new thought about the buffer to Principle of Real Right Legal.