“物权性质”条款必要性探析

物权法草案中之“物权性质”条款即“法律未作规定的，符合物权性质的权利，视为物权”之条款几经删改，该条款存废争议的焦点在于其是否突破和违背了传统的物权法定原则，反映了立法界与学理界对物权法定原则及该原则之缓冲所持态度的差异。虽然新通过之物权法最终并未吸纳此款，但该条款仍具有较大的理论和实践意义。实际上，只要立法对物权性质作出符合本国国情的科学合理的界定，那么符合物权性质的权利就可以通过“法定的”物权性质而得到立法承认，就不会对传统的物权法定原则造成冲突，并且该条款的出台亦为物权法定原则之缓冲提供了一种全新的思路。

DISCUSSION ON NECESSITY OF THE CLAUSE ABOUT QUALITY OF REAL RIGHT

The clause about quality of real right, which is also called the article that the right sccording with quality of real right should be regarded as real right in the draft of real laws, has been bowdlerized after much argument. The focus of dispute is whether this clause violates or breaks the traditional ＂Real Right Legal Principle＂. This argument reflects the different attitudes which the legislators and the academe hold towards the Principle of Real Right Legal and the buffer to it. Although the new property law doesn＇t accept this clause, theoretically and practically, it still has great significance. In fact, as long as the legislation set quality of real right as a law conforming to the state＇s actual conditions, the right according with quality of real right would be acknowledged by legislation through the legal quality of real right. Therefore, it does not conflict with the traditional Principle of Real Right Legal. In addition, the clause provides a new thought about the buffer to Principle of Real Right Legal.