乌木归属实务分析

发布时间：2019-05-20 00:43

【摘要】：近年来,发生了几起乌木归属纠纷的案例,引起实务和学界关注,争议很大。彭州的“天价乌木案”更是备受关注,引起了媒体和学界的极大兴趣。对于乌木的性质和归属也是众说纷纭。虽然越来越多与乌木类似的财产被发现,但是国家对于这一领域的立法却没有相应完善。学界对于乌木的归属有很多不同的观点。主要有以下几种:归国家所有、归土地所有人所有、适用先占制度归先占人所有、难以认定等。对于乌木的归属,归根结底要看乌木的性质是什么。乌木的性质究竟是什么,比较重要的几个观点有:天然孳息说、矿产说、埋藏物说和无主物说。通过论证,排除了乌木属于天然孳息、埋藏物、无主物的可能。乌木应当属于无主物。我国法律中并没有无主物的概念,更没有无主物适用的规则。国外通行的处理办法是适用先占原则。其他国家的法律体系和我国有不同之处,所有不能简单的将国外的无主物处理规则移植到中国。必须要论证先占制度在我国民法体系中的正当性。笔者做出了两个假设。得出了无论是简单的将乌木归国家所有还是归先占人所有都是有重大漏洞。必须结合我国自身经济制度的特点,依据劳动报酬理论区别对待不同价值的无主物。最后,为防止此类纠纷的重复发生,应明确界定无主物与埋藏物这两个概念,完善相关立法。通过立法,明确规定先占制度及其构成要件。在坚持我国公有制的基础上,最大限度的保证人民的利益。
[Abstract]:In recent years, there have been several cases of black wood ownership disputes, which have attracted the attention of practice and academic circles. Pengzhou's Tianjiao Wu Mu case has attracted much attention and aroused great interest in the media and academic circles. There are also different opinions on the nature and ownership of black wood. Although more and more similar property has been found, national legislation in this area has not been improved accordingly. There are many different views on the ownership of black wood in academic circles. There are the following main types: owned by the state, owned by the landowners, the applicable preemptive system is owned by the preemptive, difficult to identify, and so on. In the final analysis, the ownership of black wood depends on the nature of black wood. What is the nature of black wood, the more important points of view are: natural breeding theory, mineral theory, buried object theory and no main object theory. Through argumentation, it is ruled out that black wood belongs to natural fruits, buried objects and no main objects. Black wood should belong to nothing. There is no concept of no subject in the law of our country, and there are no rules applicable to it. The common way to deal with it abroad is to apply the principle of preemption. The legal system of other countries is different from that of our country, all of which can not simply transfer the foreign rules of non-subject matter to China. It is necessary to demonstrate the legitimacy of the preemptive system in the civil law system of our country. The author makes two hypotheses. It is concluded that whether it is simply owned by the state or preemptive, there are major loopholes. According to the characteristics of our own economic system, we must treat different values of non-subject according to the theory of labor remuneration. Finally, in order to prevent the recurrence of such disputes, we should clearly define the concepts of unowned and buried objects, and improve the relevant legislation. Through legislation, the preemptive system and its constituent elements are clearly stipulated. On the basis of adhering to the public ownership of our country, we should ensure the interests of the people to the maximum extent.
【学位授予单位】：黑龙江大学
【学位级别】：硕士
【学位授予年份】：2015
【分类号】：D923.2

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