物权与债权二元权利体系的形成以及物权和债权的区分

物权与债权是近现代大陆法系民法中的两个基本概念。这两个概念的形成及对它的质疑经历了三个时期。第一个时期 ,由法国的波蒂埃 (Pothier)、德国的萨维尼 (Saviney)提出了物权与债权的区别 ;第二个时期 ,是对物权与债权的认识、区分进一步深化 ,并最终完成了对二者的理论上的区分 ;第三个时期 ,出现了对物权、债权的区分表示怀疑的声音。也就是说 ,是否存在一种介于物权、债权之间的权利 ?作者认为 ,无论怎样 ,在现在乃至将来一个相当长的时期中 ,维持物权与债权区分的二元权利体系是十分必要的。基于这一考量 ,作者对物权与债权的差异、区别作了完整的阐述。

The Form of Dual Rights System about Real Rights and Creditor's Rights and the Distinguish between Them

In the modern civil law system, real rights and creditor's rights are the two ultimate concepts of civil law. It took three stapes to form and query the two important concepts. At the early stage, Pothier in France and Saviney in Germany raised the distinction between real rights and creditor's rights. During the time of the second stage, opinion of knowing and distinguishing the two more deeply and finally, the theoretical distinction was completed. At the third stage, some people raised suspicious about the distinction of the two rights. It means, whether there is another right between them. The author's point of view is no matter how, no matter at present or in the far future, it is extremely important to hold out the two rights system in which real rights and creditor's rights are classified. On the basis of this consideration, the author makes a thorough discussion on the distinction of real rights and creditor's rights.