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财产权社会功能学说的产生与发展:以拉美的法律发展为例
夏立安 周晓帆
The Emergence and Development of the Socialization of Property Rights:Taking Latin American Legal Development as an Example
Xia Li’an Zhou Xiaofan

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摘要 

有三种财产理论引领拉美的现代化实践:一是财产神圣不可侵犯的理论,二是财产国有化理论,三是财产社会化理论。前两者均有不同程度的弊害,后者在拉美则相对成功。财产社会化理论的集大成者非狄骥莫属,但事实上最早提出该理论的学者是海姆。该学说虽然最早在欧洲提出,但最先将其变为现实、实现入宪入法的是拉美的墨西哥。虽然墨西哥是财产社会化的最早践行者,但发展这一理论的却是巴西。它萌芽于1916年巴西民法制定时期,确立于1934年宪法,发展于1988年宪法,落实于2002年巴西新民法典的具体条款之中。财产社会化理论从法国传到拉美,从外部限制发展到内部限制,并最终拓展到生态环境和劳动关系领域,留下了一条财产权发展的清晰轨迹。

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夏立安 周晓帆
关键词  财产权财产社会化社会功能拉美    
Abstract

In the field of property rights, Latin America’s modernization process has been broadly influenced by three theories: privatization, nationalization and socialization. At the beginning of their independence, Latin American countries completely transplanted Western political systems and accepted an absolutely liberal view of property rights, exacerbating social problems such as uneven land distribution and social polarization of rich and the poor in the region. The theory of socialization of property rights insists on the concept of absolutely inviolable property rights restricted by social interests and the social obligations of property ownership. The idea of socializing property rights owes much to the French legal scholar Duguit, expounded through his theoretical system of the social function of property rights. Influenced by positivism and legal sociology, Duguit’s theory was also inspired by scholars such as Hauriou and Hayem. Pre-empting the German Weimar Constitution of 1919, Mexico had written the social rights clause into the constitution of 1917 to protect the interests of workers and farmers. The socialization of property is a product of historical developments in Mexico, and its purpose was to redistribute land to solve the phenomenon of land concentration. Enduring authoritarian rule and the latifundia system intensified contradictions in Mexican society, leading to the outbreak of Revolution of 1910, objectively promoting the emergence of socialized concept of property. The shared-land tradition of Mexican Indians also weakened the region’s recognition of the idea of absolute property rights. In 1911, Duguit gave six lectures at the law school of the University of Buenos Aires, Argentina, systematically proposing his theory of the social function of property rights. After the 1920s and 1930s, his theory gradually influenced the practice of Latin American property socialization. For example, the Chilean Constitution of 1925 and the Colombian Constitution of 1936 emphasized that the law could restrict private property based on the public interest. Although much of the land reform in Latin America before the 1980s did not achieve expected results, it is undeniable that the doctrine of the social function of property rights provides a solution to the land problems of various countries. Although Mexico was the earliest practitioner of property socialization, it was Brazil that pushed this theory to development. The theory of the social function of property rights was first sprouted during the formulation of the Brazilian Civil Law. It was established in the 1934 Constitution, developed in the 1988 Constitution, and implemented in the specific provisions of the 2002 Brazilian Civil Code. Although the Civil Law of 1916 chose the liberal property path at last, the idea of property socialization was still brought up for discussion during draft conferences. As of the 1988 Constitution, Brazil expanded the social function principle from purely external restrictions to internal restrictions, emphasizing the protection of the environment and labor interests, and giving property to ecological functions. By 2002, the new Brazilian Civil Law not only included environmental benefits into the protection, but also stipulated that landless farmers can obtain land through their own work to make the land productive, and the civil contract is regulated by social interests. The process of property rights theory spreading and growing in Latin America is also a process of the further development of the modernization in Latin American countries. In the century after their independence, most Latin American countries chose the absolute private property theory, which intensified social contradictions and thus suffered terribly. Similarly, some countries chose to nationalize property rights in the 20th century, such as Peru during the reforms of Velasco and Chile during the rule of Allende, experienced social stagnation and even political turmoil. Countries that have followed the path of socializing property rights, whether in Mexico or Brazil, have achieved social progress to some extent. Although the theory of social function property rights has not fundamentally solved social problems in Latin America, it has eased the contradiction between humans and land and also the contradictions between humans and nature to a certain extent. Previous research on property rights theory has mostly started from the perspective of Western countries. As a region where rule of law was developed late, Latin America's development experience in the property system provides a valuable perspective for the study of the theory of property rights.

Key wordsproperty rights    property socialization    social function    Latin America   
    
引用本文:   
夏立安 周晓帆. 财产权社会功能学说的产生与发展:以拉美的法律发展为例[J]. 浙江大学学报(人文社会科学版), 2020, 6(4): 125-. Xia Li’an Zhou Xiaofan . The Emergence and Development of the Socialization of Property Rights:Taking Latin American Legal Development as an Example. JOURNAL OF ZHEJIANG UNIVERSITY, 2020, 6(4): 125-.
链接本文:  
https://www.zjujournals.com/soc/CN/10.3785/j.issn.1008-942X.CN33-6000/C.2019.12.123     或     https://www.zjujournals.com/soc/CN/Y2020/V6/I4/125
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