【作者】徐国栋Guodong XU
Abstract: In Stoic philosophy, the incorporeal as quasi-existence constitutes the panorama of the world together with the corporeal as existence. After introducing the concept of corporeal and incorporeal to the civil law, the Romans downgraded it to the first basis of classification of things. Gaius transformed the concept of incorporeal thing to serve the purpose of creating a large system of property law with rights as its objects. Because the concept of incorporeal thing is in direct contradiction with the modern law’s distinction of absolute right from relative right and the distinction the right from its object. So in the era of codification, except for some civil codes that are loyal to the Roman law retained the classification of incorporeal-incorporeal thing, many civil codes abandoned this classification, and adopted the division of movable and immovable as the first classification of the thing, and created a property law system with a bifurcation of real right and obligation. With the revelation of the defects of this bifurcation and the emergence of objects that could not be covered by the concept of corporeal objects, such as energy, etc., as a result of the Industrial Revolution, the concept of incorporeal thing was revived, and a number of civil codes that did not provide for incorporeal thing in the past did so instead. As a result of the de-philosophizing of concepts of civil law, the concept of incorporeal property began to replace the concept of incorporeal thing. The concept of immaterial property further replaced the concept of incorporeal property due to the flourishing of intellectual property law. China’s Civil Code retains the space for the existence of incorporeal property, but it only recognizes the rights as incorporeal property to the extent that it is expressly provided for in the law, resulting in the fact that it cannot cover the emerging incorporeal property, such as personal information, data, radio spectrum resources, space, and so forth, which are provided for by the Civil Code itself, with the concept of incorporeal property. Only by interpreting the incorporeal thing recognized by the Civil Code of China to also include non-rights incorporeal thing can China modernize its property law in order to appropriately respond to the two major trends of the dematerialization of the object of civil law and the objectification of the ownership of rights.
【本文来源】《比较法雑誌》第59巻第1号（通巻第213号）2025
