- 期刊
論典權人之典物處分權
A Comment on Dian-holders' Right of Disposition of The Property Dianed
摘要
典權雖以我國固有法上之擔保物權之類型被適用二千餘年之久，但由於時空環境的巨大改變，迄至今日，其適用空間已日呈萎縮與狹小。不過，鑑於對既有權利法律關係之維護，以及考量典權法制如能善加活用，即使時之今日，典權仍應可期其發揮一定規範之功能，故物權法於今（民國九十七）年之修正仍經決議予以保留。修正後之典權，立法者有考量畀予典權人處分典物所有權，以增大典權之權能，而提升典權之爲用益物權之作用。與權人既有權處分典物之所有權，則典價之計付即應包括處分典物、享有其權利之部分對價。不過，出典人仍享有典物回贖權，於典期屆滿後，仍可備齊典價回贖其典物，如此，出典人亦得享有典權人建設與物後之成果，於典權關係人間權益關係之平衡可以兼顧。典權既仍爲用益物權，則現行民法關於典權法律關係之規範仍有適用之餘地。不過，由於典權人既享有典物處分權。則現有典權效力之規定，在適用與解釋上，即應有適度調整之必要。
並列摘要
Dian has been applying as a category of real right of Chinese traditional law for more than 2000 years. However, the shift of time and space has reduced its applying range recently. Despite of the time, we can still expect Dian to have its function of regulation within extents. Thus, the revision of law of real right this year (2008) has still decided to hold it back. Though this revision, the legislators considered of giving dian-holders the right of disposition of the property dianed and extending Dian's effect, so they made Dian as a kind of usufruct. Since the property dianed is at dian-holders' disposition, the equivalent of disposition of the property dianed should partly be included with the price. However, dian-makers still have the right of redeem, which means dien-makers can redeem the property dianed by wholly price after due. Thus, dian-makers can also possess the achievements built by dianholders, that makes the legal relation between the two be balanced. Nevertheless, since the property dianed is at dian-holders' disposition, the regulation about the effect of Dian now should be modulated at the degree of applying and interpretation.