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由表面观之,物权法定主义使物权法充满了强制性规定,与私法自治的要求相去甚远,甚至背道而驰,似乎悖离了市民社会的自由价值。但实质上,物权法定主义并不违背私法自治理念,其目的恰恰在于实现意思自治的最大化,在物权法定之下物权法仍有意思自治的空间,物权法仍然是开放的法律。立法者应重视民间制度创新,适时开放新的物权类型,既保证交易的顺利进行又使私法自治得以充分实现。
From a superficial perspective, the legal doctrine of real rights has made property law full of mandatory provisions far from the requirements of private law autonomy and even runs counter to the principle of freedom. It seems that this violates the free value of civil society. However, in essence, the legal doctrine of real right is not contrary to the concept of autonomy of private law. Its purpose is precisely to maximize the autonomy of autonomy. Under the legal right of property, there is still room for the autonomy of autonomy. Property law is still an open law. Legislators should pay attention to the innovation of the non-governmental system and open a new type of property right in due time so as to ensure the smooth progress of the transaction and to fully realize the autonomy of private law.