物权和债权的优先效力需重新认识

物权的优先效力仅仅只是物权内部的优先效力。可以并存的物权以时间先后确定优先效力;限制物权优先于所有权;登记物权优先于未登记的物权;以占有为要件的物权优先于不以占有为要件的物权。债权内部也有优先效力问题。担保之债优先于独立之债;主债优先于从债;人身之债优先于财产之债。论证物权对债权有无优先效力,要在法理、逻辑和实践上都应讲得通。物权对债权并无优先效力。租赁(改称赁权)应是用益物权。

Rethinking Prior Virtue of Property Interest and Creditor's Rights

The prior virtue of property interest is just that of its constituence.The priority of concurrent property interest is confirmed by the time;limited property interest precedes over ownership;property interest on record precedes over unrecorded one;property interest with important document of appropriation takes precedence of it that is not with.Prior virtue is within creditor' rights,too.The warranted obligation precedes over unattached obligation;prime obligation takes precedence of secondary obligation;person obligation precedes over estate obligation.We should make sense in legal principle,logic and practice so that we can demonstrate whether property interest is prior to creditor' rights or not.The present study proves that property interest is not prior to creditor's rights and that tenancy should be usufructuary right.