摘要
因对罗马法及日耳曼法的继受,在大陆法系民法所形成的"物上请求权两立"与"动产占有的权利推定效力"并行的立法模式中,以"法律禁止之私力"作为占有返还请求权要件的规则,系立足于"原占有、现占有均不具有应受法律保护的权利,但现占有更具有可非难性"的利益判断基础之上。我国民法在未规定"动产占有的权利推定效力"的前提下,仍将"法律禁止之私力"作为占有返还请求权的要件,基于"盖然性判断",形成了"尽管原占有人很可能是权利人,但只有当现占有人以恶劣方式侵害原占有的,才需返还原物"的利益格局,进而导致了"无法证明所有权的失主即无法请求拾得人返还遗失物"的法律漏洞。通过将《民法典》第462条中的"侵占"一词扩张解释为"无权占有",则可弥补上述法律漏洞,并可在"动产占有的权利推定效力"阙如的我国民法中,使"盖然性判断"彰显于动产占有返还请求权之上。
Because of the succession of Roman law and Germanic law, in Civil Law System, the regulation that possession returning petition right can be exercised only if the possession has been seized by force, is based on such interest balancing judgment, that the current possessor deserves more criticism although he has no real right the same as the original possessor. And then, the judgment above is derived from the presumptive power of possession. However, the Civil Law in China, which does not enshrine the presumptive power of possession, also dose the same as Civil Law System. Therefore, according to the judgment of probability, the current possessor need not return the object unless he obtained the possession by force. And then, such a legal loophole appeared in Civil Law in China, which is owner of lost property has not the right to return, unless he proves his ownership. When we interpret the word "seize" in article 462 of the Civil Law of China as "possession without right" extensively, the legal loophole above can be remedied, and the judgment of probability can be also demonstrated in Chinese Civil Law, in the condition that the rules of the presumptive power of possession is lacked.
出处
《法律科学（西北政法大学学报）》
CSSCI
北大核心
2021年第5期124-134,共11页
Science of Law：Journal of Northwest University of Political Science and Law
关键词
物权
动产
占有
返还请求权
权利推定效力
real rights
movable property
possession
returning petition right
the presumptive power of possession
