支配于物的事实与支配于物的权利--兼论物权的排他性与物上请求权

物之支配是人的意志对物的支配,意志及于物上的载体有二一是占有,二是物权,于是物之支配可以区分为物之事实支配与物之权利支配。排他性是物之支配的规律性要求,在物之事实支配中,排他性表现为支配的现实性之争;在物之权利支配中,排他性则表现为支配的正当性之争。事实支配与法律正当性的结合,导致了正权原占有在权利层面具有了对世性;事实支配与法律正当性的分立,则衍生出物权请求权。

On the Fact and Right of Domination to Things

In nature, domination to things is domination of the will, which acts to the thing through two paths, one is possession, another one is real right. So that according to the different path of the will, domination to things can be classified as domination of fact and domination of right. In the meanwhile, exclusion results from the objective rule of domination to things, and puts up opposability of realistic domination in the case of domination of fact and opposability of justice in the case of domination of right. When domination of fact accords with legal justice, the legitimate possession becomes a kind of burden of ownership, and when they are opposite, the right of the real claim would be come into being.