Research On Estate In Property Law

In modern society, we pay more attention to the use of property than its ownership, and there are many new kinds of property appear. In this background, the notion of ownership in civil law can not adapt to the change very well, it happens to bottle-neck. Property law in common law system definitely can be a good reference. Its property law is the law of estate, which is totally different from the law of ownership. For our borrowing, we must know well of the system, which is the aim of this dissertation. In this dissertation, I try to clarify the notion of estate, find the way of thinking, and sort out the system of estate for the aim of giving an original sample for reference.In this dissertation, there are no institution, no case, just the notion, concept, way of thinking. I focus on the basic concept and development history; give a full introduction on the concept of estate, the origin of the notion, the basic content, the modern development and reform. The dissertation includes three parts, part I Introduction, part II Body, which includes seven chapters; part III Revelation.In the part of introduction, I give a simple outline for the background and the present institution of the topic. I define the extent of the research, start from the property law but not end of it. The development history of estate is the key line.Chapter I is a general introduction of property law. I explain the basic notion and the special language system in modern property law, and point out the important position of estate in it. Different from the absolute ownership in civil law, common law pay more attention to the division or split of ownership, but what they split is not the real things but bundle of rights. These kinds of bundle of rights, so-called estate, are the modes of property rights in common law. The system of estates regulates the way of split of ownership, that means what kinds of property right can be created and how to be created are decided by this system. In the development of estate, the common law scholars bring up a very special legal thinking, then they create a series of tools by this thinking, such as notional entity, time-fragment, reification etc. these tools or notions can be applied to every kinds of property, not only the tangible and intangible, but the imagine of people's mind. Estate is historic and varying concept, and is very important to property law.Chapter II is about the history of estate. We must back to the middle age when we try to explain the origin of estate. The tenure in feudalism is the soil of estate. In the process of subinfeudation to substitution, the system of estates comes to be perfect. The main meaning of tenure is that it divides the interests out of land itself, so these interests can be transferred separately. These kinds of notion become to be the key content of the system of estates.Chapter III is about the content of estate. Firstly, I give a general definition to the concept of estate, then analysis the process of how these property rights are cut and the use of way of thinking. The basic notion of estate is that ownership does not attach itself to land, but to a notional entity, which can be divided in different ways, such as time, function. After be divided, owners in the land own different bundle of rights, which are all called estates. Then they treat these estates as things in law, in other word, reification. After the fiction, there kinds of things can be divided again, step by step, a mode of calculus appears. We should notice that all these kinds of estate are equal in law, they just stand for the content of interests, not refer to remedy. When they happen to conflict, the concept of title will on the stage.Chapter IV and V are about legal estates and equitable estates. The two chapters involve three main ways of split of property. First, time-fragment which is beyond the physical dimension is called the fourth dimension. It is the most basic and primitive segmentation model, it cuts "the endless time line "on land to pieces and assigns to different people, so that people can have rights on the land at different times. If can enjoy the land in current time and obtain the possession of the land of reality, it is called present estate. If enjoy the next time period, and can obtain possession at a future time, it is future interest. Future interest is not an expectant right, it is a statutory right, vested right, protected by the court. These two kinds of rights are the core moods of rights in the system of estate. According to the length of time to enjoy the land, the current interest is divided into fee simple, fee tail, life tail, life estate, leasehold, In addition to absolute fee simple, other kinds of rights will have a time remainder when they are set, that is future interest. Future interests are divided into two categories, one for assignee and the other for grantor. Second, concurrent interests, it means people can own the same property in the same time. It has some traditional types, Tenants in common, Joint tenants, etc. these traditional forms evolved from the land, has now been extensively applied to other forms of property. Its modern forms mainly develop from the land, especially residential buildings, such as condominium, cooperative apartments, timesharing, etc. these forms are based on the time fragment but beyond it. Third, Equitable estate, it is an important component of estate system, and can not be ignored. It is created mainly by trust. Use this Trust is not only a revival of the use, which is a way of property arrangement, but also the resurrection of equitable estates, which makes the dual-track system go further. Not only it extends the estates system to the field of equity, but also it is a new dimension of segmentation, function split, that means it separate the power of management and the right to get income to different people. Its prominent contribution is that it extends the scope of estates system from real property to personal property, especially intangible property, such as bonds. Estate was originally born in the land, but as more and more intangible property has a similar feature with land, that is to say, they can exist in quite a long time and generate a stable income, it begin to apply to securities and other intangible property. These are highlights of the flexible and modern adaptation of estates system. Estate, Trust and other concepts combine together to build a modern property law on the rights and interests of time and space. Trust as "the greatest creation of the common law" is the most important tool of estate planning. It is full of every corner of property law, is what we should learn.Chapter VI is about the contemporary of estate. The advantages and disadvantages of estate are all depends on its unique flexibility. By the abstract concepts, estate can be cut in many ways to meet the needs of life. It encourages the creation of new kinds of rights, and can preserves and distributes the property interests in diverse ways, with great flexibility, so it can be adapted to numerous and varied economic life and meet different needs. However, flexibility is at the cost of highly complex. The complexity coupled with its heavy historical make the reconstruction of estate system to be necessary. These years, Common law countries carry out reforms and seek to simplify the estate system. The property law reforms in1925the United Kingdom made remarkable achievements, the third restatement of property law the United States is also working to achieve this goal. Doctrinal reflection on estate is more comprehensive and in-depth, such as the concept of estate, keep or abandon; numerus clausus, recognize or not; the uniform of realty and personalty; the trend from legal estates to equitable estates, and the ablation of them.The last part briefly discusses the revelation to property law in China. Considering of the display of property law in common law, and keeping consistency, I do not use the method of comparison, but just give some tips in the last part. First, the new view of ownership. I propose to increase the power of vesting to the composition of ownership, or return the ownership to its "abstract title" tag, treat the tag itself as a "right". Second, reconstruction of the concept of property, I suggest that retain the traditional ownership system, but introduce a higher level, the concept of property rights. Third, diversification of forms of property rights and interests, we should try to borrow the tool of property law in common law countries. Fourth, Trust, the main estate planning tool in common law, is worth for depth reference. For my ability and the limitation of the dissertation, I do not go further in the revelation, just "taste" some ideas, and provide a perspective to later people.