Historical Changes Of Ownership Patterns In Civil Law System

Considered the history before the establishment of the modern ownership system, there were various forms of ownership and property rights in the Civil Law system, which can be grouped into two general categories: the property constructed from the prospective of the subjects and that from the objects. The modern private law has established the unified and absolute pattern of the ownership from the prospective of subject, embracing various forms of the property rights relations. However, this pattern of the ownership continues to face challenges in the modern time, appearing the trend to turn to the perspective of objects, and keeps facing the crisis of disintegration and dissolution. We wonder whether it is due to the object of ownership - material wealth, that its natural forms and its social function are emphasized, leading to the change of the perspective, and ultimately leading to the dissolution of the unified ownership pattern in the modern private law; or to the inherent requirements of the modern private ownership patterns, making it difficult to accommodate a variety of ownership with multiple forms of subjects and objects. Therefore, this paper aims to trace the changes of the ownership pattern in the Civil Law, reviewing the modern private ownership patterns. On this basis, we propose a re-interpretation of the state ownership and the collective ownership in the Property Law of China.In the first chapter, we review the various forms of ownership existed during the historical period before the establishment of the modern ownership system, such as dominium ex iure Quiritium, in bonis habere, ager publicus, possession vel usufructus and dominium utile of the middle ages. There were two kinds of perspectives, one is the perspective from the person to the thing, which is the domain of subject to the things; the other, on the contrary, seconds the object, defining the range of all kinds of rights and the belongings. These two kinds of perspectives have resulted in the formation of the different ideas of ownership and the pattern of real rights.The two different perspective of the ownership lead to two major differences on the technical level: firstly, the different concepts of ownership. The former emphasize a dominant position of the subject on the matter; for the second perspective, what is concerned about is the use of rem as much as possible. As a result, the content of the right on the matter is wide-open and may be divided. Secondly, the pattern of property rights system. The former prospective leads to a clear distinction between the ownership and the ius in re aliena; on the second model, the ius in re aliena are considered as parts of the ownership right.In the second chapter, we analyze the establishment of the modern model of the ownership. The change of the social-economic structure has produced the new idea of ownership. The theory of Nature Law School has given impetus to the establishment of the subjective right in the domain of jurisprudence. But focusing on the two typical types of concept of modern ownership, one is the French model of enumeration; the other is the Germany model of generalization. It is clear to find that there are two kinds of perspectives which worked in the construction of the concept of ownership. In addition, the second chapter of French civil code has considered the ius in re aliena as the modification of ownership, which reflects the traces of the perspective originated from the Mediaeval which still are left in the French civil code. Finally, the change from the objective perspective to the subjective has been realized in the BGB where the function of the Pandekten School is crucial.The construction of the modern ownership from the subjective perspective has played the decisive role in the formation of real rights system. The change of the perspective and the establishment of subjective perspective has freed itself from the dilemma of the relation of the Mediaeval real rights, and finally led to the separation of the ownership and others real rights, the latter work as the organizational instrument in the economic domain; and the former, belonging to the category of subject.In the third chapter, we discuss the trend that the perspective of the ownership seems returned to the objects.The object has become increasingly prominent in the structure of the ownership right. One side, the major tendency of incorporealization, moblizatione and valuing of property has broken though the limits of the ideas that only the corporeal things can be regarded as the objects; on the other side, the social significance and function of property are emphasized. These elements challenge the ownership system in the foundation of the subjective perspective. The emphasis of the rules changed and returned again to the object from the subject. In response to the trends of the forms of property, the concept of ownership has undergone important changes.Firstly, the emphasis of the institution of the ownership is from the static possessing to the dynamic use of things. The ownership presents a trend of value, which in a sense leads to the dismemberment of ownership. That is to say, the formal title of the ownership has separated with who actual implement the right, decoupling of ownership and individual freedom, which results that the ownership right represent increasingly its social significance.Secondly, the ownership was considered from an absolute subjective right to a social function. in this issue, the legislation of the EU and its member states reflects the different positions, which has caused the differences in the rules of ownership acquisition and the standards of compensation for expropriation.In the 20th century along with the coming of the constitutional time, the trend of socialization of ownership has got a vigorous development. The constitution has brought the concept of social function into the legislation which produced a great influence on the structure of the ownership in private rights. The ownership system is decomposed into different and concrete ownership types related to destination and nature of the things, which is regulated by the different norms as the typical properties, for example, the ownership of the agricultural land, the ownership of building, the ownership of cultural heritage, the environmental ownership whose structure is like the contract law, made by the general part and the separate part. Overall the rules in the civil code have provided the general part and the separate pate which corresponds to the concrete ownership type is provided in those special laws.However, the instruction of the concept of social function of the ownership did not bring the breakthrough of the subjective structure of ownership. The modern pattern of ownership still based on the subjective perspective, which leads to the conflict between the exclusion of ownership and the character of joint participation in modern economic, which needs the intervention from legislation. So this diversification is only a modification from the perspective of things instead of a total subversion to the modern concept of ownership whose attribution of unification is still maintained.In the fourth chapter, we analyze the structural and system characters of the modern molder of ownership, discussing the solutions of the continental legal system to the situations in which one thing involves the multiple subjects. In the beginning, the continental ownership system was found on the individualism and liberalism. From the subjective prospective, its focus is the absolute domination and the exclusion, and taking the domination of individual subject to the single object as the model, the principle of one property one right is established for corresponding it. So, the belonging forms of the group or others which have not the attribution of exclusion were excluded.In the situations in which one thing involves the multiple subjects, the continental legal system has three resolutions: the first, after the modification of juridical technology, they are comprised in the modern ownership system, for example the public ownership and commune ownership; the second, it has taken them as the exceptions, that is, recognized their structure incompatible with the modern ownership system, but because of the practical necessity, they are permitted as the exceptional situations, such as the trust property and the time-sharing property; the last, it is excluded outside from the modern ownership system, such as the collective ownerships.In the fifth chapter, we propose a re-interpretation of the state ownership and the collective ownership in the Property Law of China.In general, the Chinese property law has adopted the modern ownership in the continental legal system. At the same time, for corresponding to the public economic system, our property law has provided the national ownership and the collective ownership in which existed some vague and mistakes. It should distinguish the operating assets and the public things, according to the nature of the public properties. The former is taken into the civil property system, on the contrary, the latter the pubic property which should be applied the administrative rules. In addition, in line with Chinese practice, differentiating the different subjects of public juridical person, it should establish the public ownership system like the others countries in continental legal system for evading the malpractice of taking all kinds of public properties into the national title which is resulted in the incompatibility between the form and the substance.In the beginning, the collective ownership was excluded outside of the modern ownership in the continental legal system. Different with the private ownership considered as the subjective right whose focus is domination of person to the things, it mainly is a functional concept o a functional property. So, the property law should make the collective ownership in the direction of the concrete relationship for preventing the damage to the interests of members from the collectivism idea.