典权制度比较研究及对我国立法的启示

摘 要：典权是我国特有的一种法律制度。称典权者，谓支付典价，占有他人之不动产而为使用收益之权。根据相关的考证可以看出，该制度可能源起于南北朝时期的典卖制度。该制度在宋朝得以逐渐成熟；又经明朝的不断发展完善，并最终成型于满清时期。20世初随着中华法系的解体，国民政府在制定其民法典中对典权作出了更为详尽的规定，这些法律制度在我国台湾地区沿用至今。新中国成立后，典权制度在“废除六法”之后逐渐成为了民间习惯；但是我们仍然可以从民间的交易活动中看到典权仍然在中国客观存在的事实。相比之下，国外在规定与我国典权相类似的制度上都体现了立法水平的先进。无论是西方德国的担保用益、法国的不动产质权还是韩国的传贳权制度都作为了他们本国正式的法律渊源而在司法实践中广为运用。
关键词: 典权，担保用益，不动产质权，传贳权

Abstract: Pawn is a unique kind of legal regime in our country. The definition of pawn is to pay standard price of loan on real estate mortgage, holds other people’s the real estate and use income from here. According to the relevant research, the originate of this system can be trace back to north and south dynasties mortgages system. As time goes by, this system gradually mature in the Song Dynasty; which continuous developed in the Ming dynasty and takes shape finally in the Qing Dynasty. At the beginning of 20th century, with the disintegration of ancient Chinese legal system, the National government formulated in its code civil and measure a more exhaustive stipulation to the standard, which continues using in Taiwan area of China today. After establish of new China, with the measure of “abolishes the six legal codes” done by government, pawn has become the folk custom gradually; But we still might see the existence fact of the system of pawn from the folk transaction activity in the Chinese objective. Comparatively, overseas in the stipulation in the system which was similar to the pawn system in our country has manifested legislative level advanced. Regardless of were the guarantee usufructuary right in Germany , real estate pledge in France or biography rents pledge system in South Korea, they are taken as their country’s law origin and utilized widely in the judicial practice.
Keyword: Right to pawn ,real estate pledge；guarantee usufructuary right, biography rents pledge

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