论美国不动产共有制度

发布时间：2018-02-22 14:00

本文关键词： 共有权益按份共有共同共有夫妻一体共有　出处：《山东大学》2013年硕士论文　论文类型：学位论文

【摘要】：美国法律制度发展时间长、内容丰富、制度完备,在当今世界中影响较大。美国财产法更是伴随着财产私有制的盛行而迅速发展,成为最为完备的部门法之一。美国不动产共有制度作为财产法的重要组成部分,对于我国共有制度的完善有非常重要的借鉴意义。本文在目前已有的研究成果的基础上,全面、详细的介绍了美国不动产共有制度中的一些基本理论问题,试图为完善我国不动产共有制度贡献自己的绵薄之力。本文第一部分为不动产共有制度概述。首先,笔者从美国财产法的历史沿革、共有制度的概述、分类等方面开始讨论,明确了美国财产法受到英国等国家的深远影响,并且仍然有一定的中世纪思想烙印,展现了美国财产法是如何一步步从封建的枷锁中解脱；并简要介绍了按份共有、共同共有以及夫妻一体共有三种共有方式的基本内容,理清了三种共有方式的区别。最后,探讨了在共有制度中"property"一词的涵义,认为美国共有制度中所指的财产在绝大多数情况下就是指不动产,因此将本文中的财产范围缩小至不动产。本文第二部分为共有制度的设立。三种共有制度的设立方式各不相同。按份共有只需明确的意思表示即可。共同共有除了非常明确的表述之外还要具备四个统一：时间的统一、权源的统一、权益的统一和占有的统一,四者缺一不可。夫妻一体共有的设立也需要满足四个统一的要件,还要满足婚姻的统一,即只有符合法律规定的夫妻二人才能设立。如果在设立共有时表述不够明确,夫妻之间推定设立的是夫妻一体共有,其他人则推定为设立的是按份共有。本文第三部分探讨了共有人之间的权利义务关系。共有人管理共有不动产的方式由各共有人商议决定,法律不作限制。所有共有人都享有占有整个不动产的权利,只要没有非法剥夺其他共有人的占有权,都可以随意占有不动产。不动产出租给第三人所得的租金以及其他收益由不动产共有人共享,按照共有比例进行分配。维护共有不动产的基本费用由所有共有人分摊,共有人修缮共有不动产的费用无权要求其他共有人分摊,如协商无法解决,可以要求终止共有关系。本文的第四部分为共有关系的终止。按份共有、共同共有和夫妻一体共有的共有人都可以通过转让自己在共有不动产中份额的方式终止自己与其他共有人的共有关系。共同共有人将份额转让后,受让人与之前的共同共有人之间形成按份共有关系。夫妻一体共有人无权单方转让其在共有不动产中的份额,只有在共有人双方都同意的情况下才能转让。共同共有还有可能因为共有人将其在共有中的份额抵押而终止。本文的第五部分为美国不动产共有制度的对我国的借鉴意义。最后一部分为本文的结语,笔者总结概括了全文主要内容。
[Abstract]:The American legal system has a long time of development, rich content and complete system, which has a great influence in the world today. The property law of the United States has developed rapidly with the prevalence of private ownership of property. As an important part of property law, the system of real estate ownership in the United States is of great significance for the perfection of the common ownership system in our country. This paper introduces in detail some basic theoretical problems in the American real estate ownership system, and tries to contribute to the perfection of the real estate ownership system in our country. The first part of this paper is an overview of the real estate ownership system. Firstly, the author begins to discuss the historical evolution of American property law, the overview and classification of the common ownership system, and makes it clear that the American property law is deeply influenced by the United Kingdom and other countries. And there is still a certain brand of medieval ideology, showing how American property law is step by step from the feudal shackles, and briefly introduces the basic contents of the three common ways of sharing by share, common ownership and husband and wife. Finally, it discusses the meaning of the term "property" in the common ownership system, and concludes that the property referred to in the United States' common ownership system refers to real estate in most cases. Therefore, the scope of property in this article is reduced to real estate. The second part of this article is about the establishment of the common ownership system. The three kinds of mutual ownership systems are different in setting up ways. The common common ownership requires only a clear expression of meaning. Besides the very clear expression, the common common ownership also has four systems. One: unity of time, The unification of the source of power, the unification of rights and interests, and the unity of possession are indispensable. The establishment of a community of husband and wife also needs to satisfy the four elements of unity, and also to meet the unity of marriage. That is, only two couples who meet the requirements of the law can be set up. If the formulation of joint ownership is not clear enough, the husband and wife are presumed to have a joint husband and wife, while others are presumed to be set up in accordance with the share of the husband and wife. The third part of this paper discusses the relationship between the rights and obligations of the joint owners. The mode of the joint owners' management of the common real estate is decided by the joint owners, and the law is not limited. All the joint owners have the right to possess the whole real estate. As long as there is no illegal deprivation of the possession of other joint owners, they may take possession of immovable property at will. The rent and other proceeds of the lease of the immovable property to a third party shall be shared by the co-owner of the immovable property, The basic cost of the maintenance of the common real estate shall be shared by all the co-owners, and the common owner shall not have the right to ask the other co-owners to share the costs of repairing the common real estate. If the negotiation cannot be resolved, the joint ownership relationship may be terminated. The 4th part of this article is the termination of the common relationship. A joint co-owner and a joint husband and wife may terminate their joint relationship with the other co-owners by transferring their share of the common real estate. The transferee and the former co-owner form a co-ownership relationship. The husband and wife shall not have the right to transfer unilaterally their share of the common real estate, It can be transferred only with the mutual consent of the joint owner. The joint ownership may also be terminated by the joint owner mortgaging his share in the joint ownership. The 5th part of this paper is the reference meaning of American real estate ownership system to our country. The last part is the conclusion of this paper, the author summarizes the main contents of the paper.
【学位授予单位】：山东大学
【学位级别】：硕士
【学位授予年份】：2013
【分类号】：D971.2;DD913

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