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2007年颁布的《物权法》第五条规定“物权的种类和内容,由法律规定。”此条规定了物权法定原则,限制了当事人的意思自治。与此同时,物权作为一部私法,应当体现出意思自治的特性。这样,一方面要求限制意思自治,一方面追求意思自治,两者相互冲突。到底是应当物权法定还是意思自治,学者出现了不同的观点。本文拟以两种观点为基础,进而提出作者自己的观点,意思自治终将会替代物权法定。
Article 5 of the “Real Right Law” promulgated in 2007 stipulates that “the type and content of real rights shall be prescribed by law.” This article sets forth the legal principle of real rights and limits the parties’ autonomy of meanings. At the same time, as a private law, real rights should reflect the characteristics of autonomy of purpose. In this way, on the one hand, it requires the restriction of autonomy of means and the pursuit of autonomy of purpose on the other hand, which conflict with each other. In the end should be the legal rights or autonomous autonomy, scholars appeared in different perspectives. This article is based on two viewpoints, and then put forward the author’s own point of view, meaning autonomy will eventually replace the legal rights of property.