Font Size: a A A

Study Of Public Law Legal Property Ownership Issues

Posted on:2012-05-28Degree:DoctorType:Dissertation
Country:ChinaCandidate:R Y LvFull Text:PDF
GTID:1116330338491531Subject:Civil and Commercial Law
Abstract/Summary:PDF Full Text Request
The entire legal systemcan be divided into two parts, one mainly adjust property relationship and personal relationship between equal subjects; another mainly adjust the relationship between unequal subjects for management. The former is called private law; the latter is called public law. Legal person based on private law is called private legal person, and legal person which based on public law is called public legal person. To facilitate what this paper discussed, while to clear differences among other relevant state on construction of public legal person, this essay beigin with the legal person on public law as the starting point, maily disscussed authorities'property ownership with Chinese characteristics. Here the public legal person mainly refers to the government at all levels, and other authorities, institutions, social organizations are not the main point what this paper explored. And on property ownership of public legal person only real right is conserned, creditor's rights, intellectual property rights and so on are rarely involved.Based on article 36 of the The civil law , legal person is an organization with capacity for civil rights and civil conduct ,and it may independently enjoy civil rights and assume civil obligations. Article 37 stipulates that it is necessary for a legal person to have its own property or funds in addition to lawfully established. Property or funds is the basis for a legal person to bear civil liability independently, and also one of the the necessary conditions that a legal person be established. From the perspective of a legal person independently enjoying civil rights and assume civil obligations, it is necessary for it to dominate the property or funds completely ,and to exclude others's interference. Otherwhise, if it can't control and exclude others interference, it has not its own property, then it cannot bear civil obligations and responsibilities independently, and it also cannot become a legal person.In our country, provisions about public legal person are embodied in the third quarter of chapter 3 of the civil law; provisions of this section regulate the found conditions of authorities, institutions and social organizations with only one article. According to the first paragraph of article 50, authorities have legal person status when it is founded with independent fund from the date of establishment. Judging from this provision we can affirm that authorities own funds ownership essentialy. "Independment" itself means authorities can control funds ownership completely and eliminate others'interference.Ought to say, rules about property ownership of authorities accord with the basic spirit of the civil law, as one of the civil subjects public legal persons should apply provisions about property rights formulated by the civil law. However, these rules aren't implemented and executed well. This may largely subject to the influence made by constitution, which stipulate that state-owned property belongs to our country or the whole people. Under this provision of the constitution belonging problem about state-owned property was solved on the surface. But in reality, state-owned property not only failed to get good protection, but also the loss of state-owned property failed to get effective control. Its root causes lies in the provisions on state-owned property ownership by the constitution that it is not in line with property ownership construction by the civil law. From particular subject, specific object, particular right on real right, regulations of the constitution on state-owned property ownership do not accord with these three specific principles. As for subjects are not specific, object scope dominated by subjects can not be clear, rights belonging is also difficult to clear, then the responsibility can not be implemented and property loss is inevitable.It was thought as embodyment of the superiority of the socialist system that State-owned property should be owned by state or the whole people, and this is the basic point what we always insist on. For most people, only upholding state ownership is socialism, and any speech attempt to private state-owned property is the viewpoint that filled with the tendency of liberalization, and it is dangerous, may bring serious consequence. However, this practice that impos the pursuit of political on real right system not only failed to resolve the loss of state-owned assets. In contrast, under the banner of state-owned property lots of the property missed. And many people just under state-owned banner to devour steal or diddle property owned by the state or the whole people.It must be clear that the conception of private is different from privatization in civil law. In sense of "private" it means to determine, state-owned property owned by authorities or public legal persons does not mean that it will no longer bear the functions of public service. Instead, in order to better serve the public, provid society with high efficiency, high quality and cheap public goods or services, and in order to define the responsibility of public legal persons, it is necessary to admit that public legal persons should enjoy property ownership which dominated or controled by them. This is the inherent requirement of specific real right.Property ownership of public legal persons'is an existing objective reality not only under the planned economy system, and it is even more so under market economic system. Once we think people's government is the government without self-interests, however, this stipulation even in the past is also untenable. Whether the proletarian government, or bourgeois government, they need all kinds of material goods to maintain their existence, and it will not run only with people's existence while no substances material, on this point you will not be materialist if you do not insist on it. Marx has made a Penetrating elaboration on the nature of state when discussing the origin of nation, he thought that state is only an imaginary community; it was only a tool for the dominant class community used to maintain and realize its community-interest. Common interests that represented and implemented by it is essentially the interests of this community. Of course, here what mentioned above by Marx is mainly aimed at bourgeois countries. for communist system, when all needs of people can be satisfied , there is no necessary for state to exist, also the so-called national ownership will not exist, state will become the decoration in the museum.We will be in the primary stage of socialism now and for a very long time in the future. Once two roads, two systems were incompatible on ideology for a long time, they were hostile to each other. Especially in order to set apart from capitalist countries completely on systems construction, the socialist countries always tried to distinguish with the capitalist countries in legal syetem's construction. However, with the development of society, we have gradually realized that system construction with common value for the human civilization can not only be used by the capitalist countries, socialist countries can use likewise. As for the science of real rights, it is an indisputable fact that the property system of legal person which arouses people's creative vitality had greatly promoted the development of productive forces. Even before reform and opening up our country had explored management vigor on state-owned assets constantly, after introducing property system of legal person, the operating vitality of state-owned property had been resolved fundamentally. This key lies in the property system of legal person which was implemented. Although there is big difference between public legal person and private legal person in establishment, operation, legal regulation, etc, as legal person it is difficult for public legal person to free from vulgarity. Public legal person will not exist without materials. It is impossible for a government to run outside various groups. On one hand Local governments at different levels is the spokesman of central government, it need to maintain consistence with central government, on the other hand it is the spokesman of local residents, it need to reflect the will of the local residents. Besides, they pursue interests which are different from central government and Local residents, namely have their own interests and they are groups with self-interests.At the beginning of the reform and opening up, someone once blamed sadly hard that for decades hard we went back to liberation before one night. Since reform and opening-up most people are still tormented, they think that public ownership went bad, socialism went bad, we are no longer adhere to the road of socialism, but on the road of capitalism. This view largely affect the construction of scientific real rights system seriously, even the property rights law wich has already been issued still keep much residue of old idea, it is a pity apprently. We have no objection On the road, but we should have the courage to reference the beneficial result of human civilization in realizing socialism.State-owned property can be divided into different types owing to its existence state, function, nature, or use, for different types of state-owned property, public legal person own different rights. For administrative public property, fiscal property, most countries stipulate that public legal persons have the property ownership. For resource property, as mineral deposits, land and other natural resources are important to the national economy, some countries stipulate that they are owned by the state, essentially they are owned by the central government, and some countries stipulate that they belong to central government or local government according to the type and value of mineral deposits in continental law system. In Anglo-American law, ownership of natural resources is resolved by trust law. Public legal person has the ownership of the trust property while public can use and earn from it. As for our country, the constitution and the civil law, the property law, etc have made the corresponding provisions on wich property belongs to the nation. But, since our country did not distinguish property by standard on function, nature or use, it takes the way to list the ownership of every property, which will not be scientific.One big difference between public legal person and private legal person is that the former own police power, it can obtain property ownership forcefuly, freely, and fixedly. Private legal person does not have this power; it can only obtain property ownership through principles of equality, voluntariness, and through making compensation for equal value. And it was for the difference on obtaining property ownership, property ownership of the public legal person is different from which of private legal person in all aspects in running and implementing. Whether to possess, utilize, profit from, or sanction, public legal person must follow the principle for public welfare, otherwise, the legitimacy of its existence and rationality will be a problem, and once it deviate from the value of public welfare goal, there will be no necessary for its existing.Like private legal person the property rights of public legal person also has the problem of achievment, loss, and change. Change provisions of property ownership In private law may also be applied to which of the public legal person. In addition, for its dual identity the change of property ownership of public legal person is restricted in many ways. Public legal person must comply with doctrine in obtaining property rights strictly, and cannot obtain property rights arbitrarily, or against procedures. Unlike private legal person, public legal person must follow the principle of public welfare when it processes the property ownership, it can not be on autonomy.Public legal persons can protect their property ownership through exercising police power because they always own police power, and this is mainly displayed in the protection of administrative law. But it does not negate that they may protect their legitimate rights and interests through private law. In private law claim on objects can also be applicable. In addition, property rights of public legal person will get special protection according to Criminal law. Consequences of infringing property ownership of the public legal person are different from infringement to the property ownership of private legal person.
Keywords/Search Tags:public legal person, private legal person, Property ownership
PDF Full Text Request
Related items