Research On Restriction Of Private Property Right

The essence of restriction of private property is to promote social harmony by restricting the free exercise of private property rights moderately. The legitimacy basis of restricting private property includes philosophy, sociology, economics and Jurisprudence. In philosophy, It is the need to reconcile tension between freedom and equality value of property. In sociology, It is the equilibrium of individual interest and social interest of property. In economics, externality theory and transaction cost theory can better explain the necessity of restriction of private property. In Jurisprudence, External limitation should be taken as the theory model for restriction of private property. The theory of conflict of rights has strong explanatory power for the reason of right restriction. Rights rank theory provides methodology for right limit.Comparison law investigation shows that restriction of private property is not a linear process of development. Along with the social politics economy and ideology culture environment changes, it presents the spiral development of complex structure. In the western legal system, Ancient Greece and ancient Rome law created the early development history of the private property right limit. In the medieval Europe, private property right limit present diversity and fragmentation propensity. In modern West, protection of private property was flourishing, which outweighed the limitation of effort. In the contemporary west, fading and socialization of private property become the historical trend. In China, impoverishment of private property in the ancient law was consequences of right limit politically. In modern China, The law of private property limit was affected by western law, with the former blindly copying the latter. In contemporary China, restriction of private property has undergone extreme nightmare and finally entered gradually rational and tolerant new era.Restriction of private property can follow two ways, private law and public law. Private law limit pays great attention to the principle of forbidding the abuse of rights, in which the system takes the adjacent relation, bona fide, acquisitive prescription as representative. Forbidding the abuse of rights refers to the exercise of rights shall not deviate from the social objective of the right, nor may exceed the proper limits of rights. Public law limit emphasizes proportion principle, and the specific typical limits include expropriation and regulation. Constitutional significance of the principle of proportionality is basic standards to adjust the relationship between the national public power and private rights. And it refers to the exercise of state power must have the appropriateness, necessity, proportionality, without imposing unlawful infringement to citizens' personal rights.China's private property right restriction needs reconstruction from idea and system two dimension. As the historical tradition and realistic national condition of the public power first, private right not clear and public interest in flood, private property right socialization theories and ideas of law should be treated with caution. The social standard is inheritance and development of right standard, not the two opposing extremes. The construction of rule of law about property rights in China should adopt the concept of development, "right standard priority, considering the social standard", prevent the abuse of legal paternalism and the excessive expansion of public interests, and establish limited mode of private property rights restriction. It depends on innovation of the Constitution and legal system. We need to perfect the safeguard clause and limit clause of constitutional private property right, and undertake the history mission leading reform and progress of the clauses of property right in Property Law and other relevant laws.