On The Debt - Two Theory And Its Construction Of The Civil Code System

There are five chapters in this dissertation:Codification is the feature of the continental law, within which, however, manifests two different direction and constitution of codification, that is, the French three-volume civil code and the German five-volume civil code. This dissertation thinks that the distinction between the rights of the Sachenrecht from the Schuldrecht determines the structure of the German civil code. For the analysis of this point, a historical and cultural approach should be adopted. Taking such as analytical, compared and historical approach, this dissertation proposes the research and the significance of it in the first chapter. And on that basis, this dissertation defines and explains briefly the demonstration approach, basic methodological attitudes, and research methods.The second chapter mainly makes an analysis of Roman Law, using a historical positive approach. This chapter mainly discusses the property ownership, occupation, the notion of obligation, contract regulations, lawsuit regulations and their mutual relevance. On that basis, this chapter points out that the Roman Law defines precisely the notion of ownership and obligation, which are embodied and maintained by the form, independence and abstract, occupation and lawsuit regulations of obtaining the ownership. After doing this, this chapter, by the interpretation of the technical separation of occupation and ownership, and the legal nature of traditio, historically explains the dual structure in the transition from jus civile to jus gentium and the cause of the relativity of the absolute ownership, which is factually caused by the lack of the Principle of Publication in the Roman Law. In addition, this chapter, by an analysis of notion of obligation and an exploration of categorized contract in the Roman law, analyzes and explains objectively the structural elements and motives in the compilation of the Roman Law.Considering the fact that the medieval age is the formation period of the modern western legal tradition and the historical duration of the modern law's development, the third chapter makes a comparative study of the medieval period's system of the real estate's ownership, contract, occupation, and lawsuit, with the relevant systems of the Roman Law. On that basis, this chapter points out that there exists a distinctive difference between the medieval Law and the Roman Law, which has significant influence on the modern legal ideas and systems. This chapter focuses on evolution and formation of the Principle of consensus in the medieval and modern times, especially on the method of obtaining ownership by contract in accordance with the Principle of consensus, and the methodological significance in modern law's systematization and codification and the influence on the structure and system of codification in rationalism natural law of the neoteric period. Furthermore, this chapter points out that the medieval period and the modern rationalism natural law both express the legal ideas of the socialist and obligation criterion, which, in spite of it's initial distinguishing of the owner's right from the creditor's right, eventually restrains the final distinguishing of the Sachenrecht from the Schuldrecht.The fourth chapter explores the relationship between the theoretical basis of the distinguishing of the Sachenrecht from the Schuldrecht, and the constitution and formation of the German civil law's system. This chapter focuses on the interpretation of the Kant's ethic philosophy as the basic of the intrinsic value for the distinguishing of the Sachenrecht from the Schuldrecht and the German civil law system. This chapter maintains that the distinguishing of the Sachenrecht from the Schuldrecht and the corresponding legal notion and constitution are essentially legal expression of the subjective rights that have ethic free-will and self-discipline as their core ideas. On the basis of the subjective rights, this chapter emphasizes the theoretical basis and the significance of the distinguishing of the owner's right and the creditor's right. The author points out that the distinguishing of right from obligation is exactly the value basis and legal expression for Principle of Dissent and Abstract .and that Principle of Abstract is logic premise of German civil law rather than its logic conclusion. Based on the previous exploration, the author critically points out that some of the scholars wrongly interpret the distinguishing of the Sachenrecht from the Schuldrecht and the abstract principle as the experientialism and functionality. In addition, this chapter makes an exploration and illustration of the formation and establishment of the law of the property rights by a historical positivism approach.The final chapter will be the conclusion. In this part, the author adopt a comparative approach, first makes an analysis of the relationship between the systems of Gutglaebiger Erwerb and Ersitzung. after doing this, the author explains the internal system of the German Sachenrecht and Schuldrecht, and compares it with the corresponding system in French civil law. On that basis, this chapter points out that it is the distinguishing of the concept of the absolute right from the relative right that determines the different system construction of the German civil law and the French civil law. Despite the fact the German civil law and the French civil law differs in legislative technique and accuracy and coherence of the legislative practice .the two civil laws are consistent in logic. However, in the corresponding Japanese civil law and the draft property law of our country, there exist a contradiction in theory and drawbacks in practice.As a conclusion, taking opinion of the humanism value as the starting point, summarizes and explores briefly the origin and the final cause of the modern private property law crisis from the perspective of legal philosophy, and points out that the various legal sociology and philosophy, which are based on the Positivism philosophy, leads not only to crisis of the private law but also to dual nihilism of jurisprudence and law.