【线上云德】疫情期间律师说（一百四十四）┃民法典物权篇之几大热点法律话题

《中华人民共和国民法典》被称为“社会生活的百科全书”，是新中国第一部以法典命名的法律，在法律体系中居于基础性地位，也是市场经济的基本法。《中华人民共和国民法典》共7编、1260条，各编依次为总则篇、物权篇、合同篇、人格权篇、婚姻家庭篇、继承篇、侵权责任篇，以及附则。其中物权编、合同编、婚姻家庭编、继承编、侵权责任编，分别在现行的物权法、合同法、婚姻法和收养法、继承法、侵权责任法基础上，进行整理、补充、完善。接下来小编就针对民法典物权篇中几大热点话题给大家简单做个分享：

The Civil Code of the People's Republic of China, known as the "encyclopedia of social life", is the first law named after it in new China. It occupies a fundamental position in the legal system and is also the basic law of the market economy. The Civil Code of the People's Republic of China consists of 7 chapters and 1,260 articles, which are in turn general provisions, property rights, contracts, personality rights, marriage and family, inheritance, tort liability and supplementary provisions. The real right compilation, contract compilation, marriage and family compilation, inheritance compilation and tort liability compilation are respectively sorted out, supplemented and improved on the basis of the existing property law, contract law, marriage law, adoption law, inheritance law and tort liability law. Next, I will briefly share with you some hot topics in the real right of civil code:

PART1完善业主建筑物区分所有权，旨在建设美好家园

公共维修资金启动难、使用难、监督难一直是困扰业主的一大难题，更影响着业主权利的行使。但民法典直面难题并解决难题。首先，针对维修资金的启用，在业主共同决定的事项上，民法典将筹集和使用分离，并降低了使用维修资金的决议门槛，进而激活了公共维修基金。其次，第二百八十一条在物权法第七十九条的基础上，进一步规定屋顶、外墙、无障碍设施等也能够利用维修资金进行维修、更新和改造，以示维修资金可用之处的广泛性。再者，第二百八十一条明确规定，建筑物及其附属设施的维修资金的筹集、使用情况应当定期公布。从而防止维修资金的滥用，保障业主的知情权与监督权。最后，民法典在第二百八十二条中明确指出，“利用业主的共有部分产生的收入，在扣除合理成本之后，属于业主共有”，符合业主共有权的本质，维护了业主的共同利益。

It is difficult to start, use and supervise the public maintenance fund, which has been a big problem for the owners, and also affects the exercise of the owners' rights. But the civil code confronts the problem and solves it. First of all, in terms of the use of maintenance funds, the civil code will separate the collection from the use of matters jointly decided by the owners, and lower the threshold for the use of maintenance funds, thus activating the public maintenance funds. Secondly, on the basis of Article 79 of the property law, article 281 further stipulates that the roof, external wall, barrier-free facilities, etc., can also use maintenance funds for maintenance, renewal and transformation, to show the universality of the use of maintenance funds. Furthermore, Article 281 clearly stipulates that the collection and use of maintenance funds for buildings and their affiliated facilities should be made public on a regular basis. So as to prevent the abuse of maintenance funds, protect the owner's right to know and supervision. Finally, the civil Code clearly points out in Article 282 that "the income generated from the co-ownership of the owners, after deducting reasonable costs, belongs to the co-ownership of the owners", which conforms to the nature of the co-ownership of the owners and safeguards the common interests of the owners.

PART2新增所有权取得制度，真正实现物尽其用

《民法典》物权编大胆打破传统，将添附制度作为所有权的取得方式规定下来。尤其是在物的归属上，物权编明确在当事人没有约定且没有法律规定的情况下，应当“按照充分发挥物的效用以及保护无过错当事人的原则确定”。这就明确将物尽其用作为添附的情况下标的物所有权归属的确定标准，有效实现利益平衡的同时，避免了财富的损失和浪费，维护了添附之后物的价值，充分发挥了其效用。

In the Civil Code, the property right compilation boldly breaks the tradition and sets the accession system as the way to acquire ownership. In particular, in the attribution of the property, the title of property clearly stated that in the absence of agreement between the parties and legal provisions, it should be "determined in accordance with the principle of giving full play to the utility of the property and protecting the parties without fault". This makes it clear that the full use of the material is the criterion for determining the ownership of the subject matter under the circumstance of addition, thus effectively realizing the balance of interests, avoiding the loss and waste of wealth, maintaining the value of the added material, and giving full play to its utility.

PART3将土地承包经营权脱离身份色彩，变为纯粹的财产权利

土地承包经营权原来是建立在农民作为集体成员的身份的基础上，对于通常的农用地，应当通过由作为集体成员的农户与集体之间签订承包合同来设立承包经营权。实践中，在集体成员脱离集体成员身份，例如全家迁入设区的市、转为非农业户口的，就应当交回或者被强制收回承包地。既然承包经营权具有身份性质，这就决定了它不可能如纯粹的财产权那样任意流转。但是民法典全面吸收三权分置的土地改革经验，新设土地经营权，将土地承包经营权完全脱离农户集体的身份，承包经营权人可以将其承包期内的土地使用权通过设立经营权的方式以转让、出资入股等方式给他人，顺应了广大农民保留土地承包权、流转土地经营权的意愿，为作为重要生产要素的农村土地全面进入市场，进行流转或者设立抵押进行融资，提供了坚实的权利基础和制度供给。

The right to contracted management of land was originally established on the basis of the peasants' status as members of the collective. For ordinary agricultural land, the right to contracted management should be established through the signing of a contract between the peasant households as members of the collective and the collective. In practice, when a collective member breaks away from its collective membership, such as when the whole family moves to a districted city or becomes a non-agricultural household, the contracted land should be returned or forcibly recovered. Since the right to contracted management has a status nature, it is decided that it cannot be as pure property rights as arbitrary transfer. But fully absorb division and separation of the civil code of land reform experience, set up a new land management rights, the right to the contracted management of land completely out of farmer collective identity, to the contracted management of people can be contracted during the period of the land use right through to set up the right way to transfer to others, and become a shareholder, etc way, complied with the broad masses of farmers to retain the land contract right, transfer of land management, as an important factor of production as the overall market of rural land, to transfer or mortgage financing, right to provide a solid foundation and system supply.