“天价乌木案”：先占取得之立法探讨

发布时间：2018-08-01 12:18

【摘要】：2012年2月,适逢中国传统节日春节,家住四川省彭州市通济镇的村民吴高亮偶然在自家承包地里发现了巨大乌木,当时市场价值近千万。但是该乌木随后却被通济镇政府挖出运走。通济镇政府认为乌木应上交国家,而吴亮亮则主张乌木归自己所有。围绕着乌木究竟应归属何方,法学界展开了激烈争论,而后此案亦在全社会引起了广泛讨论。究其原因,是因为该案所反映出的类似乌木等无主物所有权归属问题,进一步折射了现行法律价值体系下国家所有权与私人所有权利益关系的冲突。“天价乌木案”距今已过去5年时间,虽历经一审、终审但却依然成为一桩“刺眼”的悬案,不得不令人感到些许惆怅。造成此案悬而未决的原因,还是在于我国现行立法的价值导向偏差及法律具体规则缺失。自上世纪80年代初期开始,我国已历经社会主义市场经济近40年发展,法律价值取向也逐渐回归到“尊重和保障人权”的轨道,而私人所有权的保护力度也在日益加强。在我们看来,之前计划经济时代所造就的“一切归公”思维开始逐渐被取代,而多元化的利益关系诉求正以“星星之火燎原”之势蓬勃发展,现代市民观念越来越入脑入心。我们突然发现,社会主流价值取向越来越趋向公私兼济。所以,不论是本案还是此后出现的“狗头金”案,都在向我们展示着巨大的社会进步与观念变迁,而这也正是我们社会经济繁荣与国家进步文明的标志之一。本文除了绪论及结语,其主体分为五部分内容。在第一部分,通过对案情做简要介绍,重点对一审及二审判决结果缺陷进行了阐述,从而引出案件核心焦点问题即乌木属性及所有权归谁所有;在第二部分,围绕焦点核心即乌木属性问题,笔者对目前学界关于乌木属性的观点进行了一一评析,并认为将乌木认定为无主物的观点符合其本质属性;在第三部分,笔者通过对本案争议的乌木归属进行法律分析,最终认为乌木应被认定为无主物并适用先占取得确定其所有权;在第四部分,笔者重点将先占取得制度在我国进行明确立法的理论基础及现实意义进行了详细分析说明;第五部分,对于我国如何建立完善先占取得制度,笔者进行了深入探讨研究并提出了具体建议。
[Abstract]:In February 2012, during the traditional Chinese New year festival, Wu Gaoliang, a villager who lives in Tongji Town, Pengzhou, Sichuan Province, stumbled upon the discovery of huge ebony in his contracted land, with a market value of nearly 10 million. But the ebony was later exhumed by the Tongji town government. Tongji town government believed that ebony should be handed over to the state, while Wu Liangliang argued that ebony should be owned by himself. There has been a heated debate about where ebony should belong, and the case has been widely discussed in the whole society. The reason is that the ownership of ownerless things such as ebony reflected in the case further reflects the conflict between the interests of state ownership and private ownership under the current legal value system. Five years have passed since the "sky-price ebony case". Although it has passed through the first instance, the final case is still a "dazzling" case, which has to make people feel a little melancholy. The reason why this case is pending lies in the deviation of value orientation and the lack of specific legal rules in our current legislation. Since the early 1980s, China has experienced the development of socialist market economy for nearly 40 years, and the legal value orientation has gradually returned to the track of "respecting and protecting human rights", and the protection of private ownership has been strengthened day by day. From our point of view, the thought of "returning all to the public" brought up in the planned economic age before was gradually replaced, and the demands of diversified interest relations were booming with the trend of "sparkling fire", and the concept of modern citizens was getting more and more into the mind. We suddenly find that the mainstream value orientation of society is becoming more and more public-private and financial. Therefore, both this case and the "Dog Tou Gold" case are showing us great social progress and concept changes, and this is one of the symbols of our social and economic prosperity and national progress civilization. In addition to the introduction and conclusion, the main body of this paper is divided into five parts. In the first part, through a brief introduction of the case, the author focuses on the defects of the results of the first and second instance judgments, which leads to the core focus of the case, that is, who owns the ebony attribute and the ownership; in the second part, Around the core of the focus, ebony attribute, the author analyzes the current academic views on ebony attribute, and thinks that the viewpoint that ebony is considered as no main object accords with its essential attribute; in the third part, Based on the legal analysis of ebony ownership in this case, the author concludes that ebony should be considered as non-subject and the ownership of ebony should be determined by preemption; in the fourth part, The author focuses on the theoretical basis and practical significance of making clear legislation on the preemptive acquisition system in China. The fifth part is about how to establish and perfect the preemptive acquisition system in our country. The author carries on the thorough research and puts forward the concrete suggestion.
【学位授予单位】：河北大学
【学位级别】：硕士
【学位授予年份】：2017
【分类号】：D923.2

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