“房地一致”原則再探
發(fā)布時間：2018-08-04 21:06
【摘要】：東亞地區(qū)在房地關系上,不同于歐陸采房地一體模式,而認建筑物與土地分離為獨立的不動產(chǎn)物權客體,即采房地分離模式。當事人可分別處分房與地,使得受讓后的房地權屬各異,若房地之間無地上權等制度勾連,則會產(chǎn)生大量拆屋還地的情形,此即房地分離產(chǎn)生的問題。對此,大陸規(guī)定"房地一致"原則,令房地聯(lián)動發(fā)生權利變動,但實踐中卻產(chǎn)生房地分別抵押的情形,解釋上產(chǎn)生爭議。物權法頒布前后存在不同的解釋,但依據(jù)物權法的規(guī)定,只能采重復抵押說。在分別抵押中,存在對新增建筑物抵押的例外規(guī)定,該例外是大陸房地分離問題的不同處理方式。通過對現(xiàn)行規(guī)范的解析,本文總結了 "房地一致"原則的不足,進而探求更好的解決方式。同樣存在房地分離問題的我國臺灣地區(qū),采用法定地上權以勾連房地,使得房地可分別抵押;采推定租賃關系以勾連房地,使得房地可分別讓與。但對于分別抵押和分別讓與的區(qū)別規(guī)定,產(chǎn)生了爭議,應統(tǒng)一規(guī)定為法定地上權。而該法定地上權實為法定不動產(chǎn)役權。借法臺灣地區(qū)的處理,為緩和"房地一致"原則過于僵硬造成的不足,對于抵押的情形,大陸可以在抵押權設定時發(fā)生法定不動產(chǎn)役權,從而令房地可以分別抵押,是處理房地分離問題更好的方式。另外的制度選擇是地上權,但地上權未有明文規(guī)范,且需要重新設計大陸的土地制度,現(xiàn)行法上存在適用障礙。分別讓與可作類似處理。
[Abstract]:In East Asia, it is different from the integration model of European land and land in the relation of premises, but the separation of buildings and land is an independent object of real estate right, that is, the separation mode of real estate. The parties can dispose of the house and the ground separately, which makes the ownership of the transferred premises different. If there is no land right between the premises, there will be a large number of demolition and return to the land, which is the problem of the separation of the premises. In response to this, the mainland stipulates the principle of "consistency of premises", which makes the rights change in the linkage of premises, but in practice it produces the situation that the premises are mortgaged separately, and the interpretation is controversial. There are different interpretations before and after the promulgation of the Real right Law, but according to the provisions of the Real right Law, the theory of repeated mortgage can only be adopted. In the separate mortgage, there is an exception to the new building mortgage, which is a different way to deal with the separation of premises in the mainland. Through the analysis of the current standard, this paper summarizes the deficiency of the principle of "consistent premises", and then explores a better way to solve it. In Taiwan, where there is also the problem of separation of premises, the legal right of land is adopted to attach the premises, and the premises can be mortgaged separately, and the premises can be transferred separately by using the presumption lease relationship to connect the premises. However, there is a dispute about the difference between mortgage and assignment, which should be stipulated as legal right of land. And the legal right to land is the legal right of real estate servitude. In order to alleviate the deficiency caused by the rigid principle of "consistent premises", the mainland can take advantage of the handling of the Taiwan area by virtue of the law. In the case of mortgage, the mainland can have the legal right of real estate servitude at the time of the establishment of the mortgage, so that the premises can be mortgaged separately. Is a better way to deal with the separation of premises. The other system choice is the land right, but the land right is not regulated explicitly, and the land system in the mainland needs to be redesigned. There are some obstacles in the current law. Separate concessions may be treated similarly.
【學位授予單位】：浙江大學
【學位級別】：碩士
【學位授予年份】：2017
【分類號】：D923.2
[Abstract]:In East Asia, it is different from the integration model of European land and land in the relation of premises, but the separation of buildings and land is an independent object of real estate right, that is, the separation mode of real estate. The parties can dispose of the house and the ground separately, which makes the ownership of the transferred premises different. If there is no land right between the premises, there will be a large number of demolition and return to the land, which is the problem of the separation of the premises. In response to this, the mainland stipulates the principle of "consistency of premises", which makes the rights change in the linkage of premises, but in practice it produces the situation that the premises are mortgaged separately, and the interpretation is controversial. There are different interpretations before and after the promulgation of the Real right Law, but according to the provisions of the Real right Law, the theory of repeated mortgage can only be adopted. In the separate mortgage, there is an exception to the new building mortgage, which is a different way to deal with the separation of premises in the mainland. Through the analysis of the current standard, this paper summarizes the deficiency of the principle of "consistent premises", and then explores a better way to solve it. In Taiwan, where there is also the problem of separation of premises, the legal right of land is adopted to attach the premises, and the premises can be mortgaged separately, and the premises can be transferred separately by using the presumption lease relationship to connect the premises. However, there is a dispute about the difference between mortgage and assignment, which should be stipulated as legal right of land. And the legal right to land is the legal right of real estate servitude. In order to alleviate the deficiency caused by the rigid principle of "consistent premises", the mainland can take advantage of the handling of the Taiwan area by virtue of the law. In the case of mortgage, the mainland can have the legal right of real estate servitude at the time of the establishment of the mortgage, so that the premises can be mortgaged separately. Is a better way to deal with the separation of premises. The other system choice is the land right, but the land right is not regulated explicitly, and the land system in the mainland needs to be redesigned. There are some obstacles in the current law. Separate concessions may be treated similarly.
【學位授予單位】：浙江大學
【學位級別】：碩士
【學位授予年份】：2017
【分類號】：D923.2
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