“房地一致”原则再探
发布时间：2018-08-04 21:06
【摘要】：东亚地区在房地关系上,不同于欧陆采房地一体模式,而认建筑物与土地分离为独立的不动产物权客体,即采房地分离模式。当事人可分别处分房与地,使得受让后的房地权属各异,若房地之间无地上权等制度勾连,则会产生大量拆屋还地的情形,此即房地分离产生的问题。对此,大陆规定"房地一致"原则,令房地联动发生权利变动,但实践中却产生房地分别抵押的情形,解释上产生争议。物权法颁布前后存在不同的解释,但依据物权法的规定,只能采重复抵押说。在分别抵押中,存在对新增建筑物抵押的例外规定,该例外是大陆房地分离问题的不同处理方式。通过对现行规范的解析,本文总结了 "房地一致"原则的不足,进而探求更好的解决方式。同样存在房地分离问题的我国台湾地区,采用法定地上权以勾连房地,使得房地可分别抵押;采推定租赁关系以勾连房地,使得房地可分别让与。但对于分别抵押和分别让与的区别规定,产生了争议,应统一规定为法定地上权。而该法定地上权实为法定不动产役权。借法台湾地区的处理,为缓和"房地一致"原则过于僵硬造成的不足,对于抵押的情形,大陆可以在抵押权设定时发生法定不动产役权,从而令房地可以分别抵押,是处理房地分离问题更好的方式。另外的制度选择是地上权,但地上权未有明文规范,且需要重新设计大陆的土地制度,现行法上存在适用障碍。分别让与可作类似处理。
[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.
【学位授予单位】：浙江大学
【学位级别】：硕士
【学位授予年份】：2017
【分类号】：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.
【学位授予单位】：浙江大学
【学位级别】：硕士
【学位授予年份】：2017
【分类号】：D923.2
【参考文献】
相关期刊论文 前5条
1 汤维建;;论司法拍卖市场化改革及其完善[J];中国法学;2015年01期
2 黄琳;姚宝华;;统一的房地分离抵押裁判规则的构建——谈物权法第一百八十二条的理解与适用[J];人民司法;2013年05期
3 高圣平;;土地与建筑物之间的物权利用关系辨析[J];法学;2012年09期
4 朱晓U，
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