地役权制度的立法价值与模式选择

相邻关系与地役权的关系宿生争论,有以所谓相邻权取代地役权的,有以地役权取代相邻权者,二者关系究竟如何,在我国目前物权立法紧迫之际必须做出回答。笔者在考察了二者的基本含义和功能的基础上,指出二者的区别体现在基本保障和更高追求上,而且地役权还具有排除或者改变相邻关系适用、满足人们获得对土地利用形式多样化和稳定化的要求,具有独立而充分的立法空间和重要立法价值,理应在明确其名称和立法模式的前提下,在我国未来物权法中加以规定。

Choice of Legislative Value and Pattern of Easement

The controversy over the relationship between jus vicinitatis (right of adjacency) and easement is long lasting. Some argue that right of adjacency can be used to substitute easement. While others believe that easement can substitute right of adjacency. It is urgent for us to distinguish the relations between them while we are making laws of property. Based on observations related to the connotation and function of right of adjacency and easement, this article points out that the main difference between them is that the purpose of the former is to meet the basic need of the property owner while that of the latter is to satisfy a much higher purpose. Easement contains a very vital legislative value to exclude or alter the application of right of adjacency, and to satisfy the diversity and stability of utilization on land, which should be described in future property laws.