Studing On The System Of The Right Of The Real Claim

Right of the real Claim, as a symbol of the establishment of real right protection and its legal remedies system, greatly enriches the theoretic regime of property law. However, in China, Right of the real Claim turns to be a problem in property theories and often aroused controversies in the process of enacting Property Law. Although in the final documents, the basic content of Right of the real Claim has been identified for property protection, its theoretic issues have not been solved thoroughly by the legislation. This dissertation, therefore, is to tackle the problem by way of analyzing the system of Right of the real Claim in its entirety.1.The Major ContentsRegarding Right of the real Claim, the dissertation has four chapters except the Introduction and Conclusion.Chapter I: Claim and Right of the real Claim. Besides its specialty, Right of the real Claim has the common characters as a claim. By tracing to the source of claim, this chapter classifies the relevant academic opinions and makes an analysis of claim in the civil rights context, which provides theoretic basis for the later discussion. It is pointed out that claim is a legal reflection of private relations and is a right for action or forbearance by another. From the aspect of rights classification, claim is not a basic right, but a means to exercise basic rights. It is established from the dynamic perspective and is a technical right to work for basic rights. Every basic right has its claim. Right of the real Claim and creditor's claim are at the same logical level and all these claims constitute the regime of claims in civil law. Thereupon, Right of the real Claim is not only the result of value judgment in civil right system, but also consistent with the logical structure of civil rights.Chapter II: Right of the real Claim and Protection Mechanism of Real rights. By analyzing the content and nature of Right of the real Claim, it focuses on proving the reasonableness of Right of the real Claim in the protection mechanism of real rights. There are various ways to protect property, but Right of the real Claim is not irreplaceable. It is not only due to its protective function, which is decided by its remedy nature, but also because of the rights and obligations between two parties formed after property is infringed, the distinction between Right of the real Claim and the result of tort action, the limitation of action applicable to it, etc. In addition, from the respect of legal system construction, Right of the real Claim can keep the civil law system more balanced. Hence, Right of the real Claim is necessary for the protection mechanism of real rights and is in conformity with both theory and practice. Right of the real Claim may compete with other claims, which however can be settled according the competing rules.Chapter III: Right of the real Claims Based on Ownership. Ownership is the core of real rights and the most complete one. It has Right of the real Claims, such as claim for returning property, claim for removing the impediments, claim for terminating the danger.Since ownership means direct disposition of property, possession is a pre-condition. Thus, claim for returning property aims to recover owner's right of possession, which however is not the end. The claim further requires in order to achieve the balance of interests, the relation between the two parties shall be handled in accordance with the rules governing possessor and owner.When someone interrupts the realization of ownership, owner can request the actor to remove the impediments to restore ownership to its original state. Notwithstanding in practice there is something else which should be paid attention to. The balance of two parties'interests should be considered before impediments are removed. There are differences between claim for returning property and claim for removing the impediments, such as regarding different actions and having different legal effects. In the meanwhile, they have connections because both of them are against infringement of ownership.Sometimes, ownership is not actually infringed, but there is a danger which may cause infringement. Under such situation, owner can claim for terminating the danger. Besides eliminating danger, the actor should bear the expenses for realizing the claim except as otherwise provided. Furthermore, the actor can fulfill his obligation by way of passive forbearance, which is the significant difference between it and claim for returning property, claim for removing the impediments.Chapter IV: Right of the real Claims Based on Jus in re Aliena. Under the idea of fully utilizing property, the chapter makes a comparison of the foreign legislations about Right of the real Claims based on jus in re aliena, and further analyzes Right of the real Claims under different jus in re aliena. It pinpoints that right holders of jus in re aliena have their priority in the lawful relation between them and owner. And since there are various reasons for infringement of jus in re aliena, the right holders of jus in re aliena are bound to have Right of the real Claims. However, jus in re aliena are limited real rights and are incomplete in comparison with ownership. Thus, only usufructuary right and chattel pledge have Right of the real Claims while right pledge does not have and right to mortgage and lien do not have claim for returning property. The Right of the real Claims based on each jus in re aliena have their own characteristics.2. The New Ideas Presented in the DissertationAcademic research aims to study and further surpass current theoretic achievements. The dissertation by studying the theories on Right of the real Claim, tries to integrate the existing theories and present new ideas, which are summarized as follows.(1) Claim is a means to exercise basic rights and a technical measure for protection. Many scholars fail to make a clear statement on the standards of rights classification, which causes difficulties in understanding claim. The dissertation points out that right is a legal matter, which reflects as a basic right. And it is also the necessary means to realize and protect the legal matter, which reflects as a claim. Observed and described from this angle, claim has strong technical nature in comparison with basic right and it is a technical measure to realize and protect basic right. Accordingly, there are no claims apart from basic rights. In contrary, they always coexist.(2) In civil right system, Right of the real Claim and creditor's claim are at the same logical level. In current research, it has been wrongly accepted that credit is a claim. Though some scholars have stated the distinction between the two, their arguments are not quite clear. In contrast, by identifying claim as a technical means, the article proves to be more distinct. When credit is established, the right and duty are formed between the two parties. The debtor is obliged to pay while the creditor is entitled to claim. However, the claim here exists just as a right, not an actual claim for something. It is the same with Windscheid's Anspruch (passive Right of the real Claim) and has nothing substantial. Only when debtor fails to make the payment, credit can be claimed. Under such context, creditor's claim can occur when credit is infringed. Hence, creditor's claim and Right of the real Claim are at the same logical level since both of them work as a technical measure to realize and protect basic rights. The idea just responds to the opinion that Right of the real Claim set up in law is to protect real rights. And it also helps to understand civil right system and claim system and further provides basis for Right of the real Claim in property protection mechanism.(3) The article presents a reasonable analysis on whether limitation of action applies to Right of the real Claim. After identifying various theories about limitation of action, it pinpoints that limitation of action is utilized to prevent the negative effects to parties'property and credit, which are brought by the inactive state of their right and obligation relation, and to maintain secure transaction and good social order. The analysis based on the conclusion can avoid empty talk. Meanwhile it can be reasonably explained why limitation of action does not apply to Right of the real Claim.(4) Claim for returning property is analyzed in accordance with the rules governing owner and possessor. In German law, the rules are important to understand claim for returning property based on ownership, which however are not paid attention to in China's academic community and are seldom utilized by scholars. The article analyzes the effects of claim for returning property and the relation between it and other types of claims. By applying the rules, it makes a research on rights and obligations between owner and possessor from several angles and sets an analytic frame for claim for returning property.(5) It makes a thorough analysis on Right of the real Claim based on usufructuary right, which is stipulated in Property Law. In current research, traditional usufructuary right is always the subject to be analyzed. In combination with the rules in Property Law, the dissertation makes a thorough analysis on Right of the real Claims based on the right to the contracted management of land, the right to use construction land, the right to use house sites and the easement, which provides theoretic support for Right of the real Claim research in China.3. Deficiencies and What Need to be Improved in the Dissertation(1) The analysis on civil right system is an important part of civil law research. Though the article demonstrates its distinct opinions, owing to the significance and complexity of the issue, there is still some space for further discussion, especially the definition of the term and its status in civil right system.(2) Though real right and Right of the real Claim originated from the Continental Law System, it is essential to introduce Common Law rules into the study. The article does not make a full research on relevant materials about Common Law rules because of the author's limited knowledge and capability. This is what the dissertation lacks and needs to be further studied.(3) It is of great importance to apply existing public data and materials into academic research, but new information is also indispensable. Although the author tried to collect relevant materials, the reference of the article is limited due to his difficulties in foreign language, and secondary resources are frequently cited, which will influence the argument. Thereupon, the author has decided to make academic study in a wider horizon, especially comparative law study of the relevant rules.