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物权类型封闭原则是较为年轻的物权法原则,产生于19世纪的潘德克顿法学,并从19世纪下半叶开始逐渐影响欧陆各国以及东亚地区,形成了四种不同的规范表达模式。从物权类型封闭原则的本体来看,它仅仅是限制当事人的形成自由,并没有限制物权类型的法律渊源。物权法定原则,是物权类型封闭原则在东亚的特殊表现形态,随着习惯法和判例法在东亚各国被承认为物权类型的法律渊源,物权法定原则已经向物权类型封闭原则回归了。在外部体系方面,物权类型封闭原则是物权法自治性观念的逻辑衍生物;在内在价值目标方面,该原则的目的在于促进财产流通,统一所有权确保了物的可流通性,他物权类型封闭使信息标准化,降低了交易成本。当然,在公示制度和信赖保护不断完善的情况下,他物权类型封闭的重要性已经大幅下降了,但统一所有权对财物可流通性的维护作用仍然无法被替代。是否改采他物权类型开放原则,需要充分考虑其必要性、可行性以及我国的特殊国情。
The principle of property type closure is a relatively young principle of property law. It was born in the 19th-century Pandecton jurisprudence. From the latter half of the 19th century, it gradually affected four continents in various countries in Europe and East Asia. From the ontology of the principle of property type closure, it only does not restrict the parties’ freedom of formation and does not limit the legal origin of property types. The legal principle of real right is the special manifestation of the principle of real type closure in East Asia. With customary law and case law recognized as the legal source of real right type in East Asian countries, the legal principle of real right has been returned to the principle of the close of real right type. In terms of external system, the principle of property type closure is a logical derivative of the concept of autonomy of property law. In terms of intrinsic value, the principle is to promote the circulation of property. Uniform ownership ensures the liquidity of the property. Standardize information and reduce transaction costs. Of course, the importance of the closure of real property types has dropped significantly under the conditions of the continuous improvement of the publicity system and the protection of trust. However, the maintenance of uniform liquidity by unified ownership still can not be replaced. Whether to reform the principle of opening up his type of real estate needs to give due consideration to its necessity, feasibility and the special conditions of our country.