从"乌木案"看"无主物先占"在我国法下的一般化适用

"乌木"的法律属性是确定"彭州乌木案"中乌木所有权的归属关键点,"彭州乌木案"中的乌木不属于埋藏物或天然孳息.该案中的"乌木"没有达到矿产资源"量"的标准,也未列入国务院颁布的《矿产资源分类细目》,从而不属于矿产资源.对未达到一定量标准而被排除在矿产资源之外的物,应按照无主物先占制度确定其所有权的归属,这样处理既避免了国家与民争利,也符合古今中外的习惯法规则.

An Analysis on the General Application of the System of Preoccupation of the Property Without the Owner from the Case of Ebony

The Legal attribute of ebony is a key point determining the ownership of the ebony in the Case of Ebony at Pengzhou. The ebony in the case is neither a buried property nor a natural fruit. The amount of ebony in the case does not reach the bar of being a kind of mineral resource, neither can it be listed in the Detailed Catalog of Mineral Resources issued by the State Council. Thus it can not be treated as mineral resource. To object that fails to reach the bar of amount thus can not be treated as mineral resource, its ownership should be determined by the system of preoccupation of the property without the owner. This system on one hand can avoid the circumstance of the interest dispute between the country and its people, on the other hand follows the common law of both home and abroad.