究竟何谓“共同关系”——再论按份共有与共同共有之区别

发布时间：2018-03-26 03:38

本文选题：共有　切入点：按份共有　出处：《东方法学》2016年04期

【摘要】：民法共有指法律上未分割之物归属复数主体,各成员对共有物特定份额享有所有权,共有对象非所有权,乃所有物,实质上是所有物价值。财产可以共有,权利不能共有。按份共有中,各成员可在本共有关系存续期间处分份额,共同共有则否,民法必须区分两者。在特殊情况下,因复数共有物发生之按份共有中,各成员对个别共有物之份额处分有法律障碍,但可在本共有关系存续期间排除,非共同共有。按份共有不含身份关系,或虽含身份关系,不发生作用,为纯粹财产关系,表现共有份额,计量出资和劳务。共同共有含身份关系,实即家庭成员间发生最高信赖关系,各共有人达成或推定达成协议,互不主张份额,共有份额不表现,不计量出资和劳务,身份关系掩盖财产关系。
[Abstract]:The common ownership of civil law refers to the ownership of the undivided objects in the law to the plural subject, the ownership of each member to the specific share of the common object, the non-ownership of the common object, the ownership of the property, the value of the property in essence, and the joint ownership of the property. Rights cannot be shared. In co-ownership, each member may dispose of his share during the existence of the co-ownership relationship, but no co-ownership. The civil law must distinguish between the two. Each member has legal obstacles to the disposition of the share of an individual common property, but it may be excluded during the duration of the joint ownership relationship. Expressing mutual share, measuring capital contribution and labor service. Common co-ownership includes identity relationship, that is, the highest trust relationship occurs between family members, and each co-owner reaches or presumes to reach an agreement, does not claim each other's share, and the common share does not show, Do not measure capital contribution and labor services, identity relations cover up property relations.
【作者单位】：华东政法大学法律学院;
【基金】：上海市教委第五期重点学科(项目号J51104)建设之阶段性成果
【分类号】：D923.2

【相似文献】