Theory On Juristic Act Of Real Right In Modern Chinese Civil Law

In respect to the real right alternation of"real"(mainly the real estate) caused by the contract, it was defined, by the traditional Chinese laws, variously in respective historical periods. When, however, on earth, is the real right alternate in the transfer process of real right enactment caused by contract? What is the symbol for the alternation of real right? For this, the traditional Chinese jurisprudence didn't provide positive interpretations. According to the data, however, in respect to the"Repeated Sale"and"Stealing and Selling Other's Property"(especially lands), the traditional laws confirmed without hesitation that the after-sale activity and the"stealing and selling other's properties"were invalid, and imposed severe criminal punishment to the related parties.The translation of western works emerged before the 19th century in China. And the legal works translation was accumulated out of the needs of exchange or learning until the middle of the 19th century. And the Chinese began to know the western civil law system of modern times. In the early 20th century, the Qing government determined to learn the western legal systems and innovate the traditional legal system of China under the pressure of situations at home and abroad as well as needs for stabilizing their reign. Under these circumstances, the translation for western civil codes expanded successively. Meanwhile, the Qing government, on the one hand, retained foreign civil jurists to help to establish new laws, and on the other hand, sent law students abroad to learn foreign laws. Thereupon, the translation and edition works for modern western civil laws had increased day-by-day and became widespread, and the modern law education had emerged and expanded rapidly domestically. The modern civil law of China then began to appear and started to grow rapidly. During the legal reform in the 20th century, China chose Japan as the premier learning object. With respect to the input of civil laws, the Japanese civil laws made a decisive effect on the aspect of the borrowing of civil law words and expressions, civil law lectures and works as well as civil law education. The definition of Juristic Act of Real Right and Contract of Real Rights from Japan then spread in China with the integral input of civil law.In the early Republic of China (from 1912 to 1929), the theory of contract of real right had been accepted by the civil law circle of that period and had been applied in the practice of civil judicial trial. The precedents and interpretation decrees by the Central Judicial Officer and the Supreme Court and the interpretation decrees by the Judicial Department can adequately prove the application of the theory on the contract of real rights in the practice of judicial trials. The related civil precedents, interpretation decrees as well as the interpretation decrees by the courts on the contract of real rights of the Central judicial Officer and the Supreme Court can not only reflect the development of the contract of real right theory in the early Republic of China, but also reflect directly the application hereof in the practice of civil judicial trial at that time, just because the members of the Central Judicial Officer and the judges of the Supreme Court and Judicial Department were occupied primarily by famous jurists at that time.While the Central Judicial Officer applied the theory of contract of real right to the practice of judicial trials, the civil law circle had further studied and discussed the theory hereof. In the early Republic of China, the fundamental content of the theory of contract of real right had emerged, such as the definition of the theory of contract of real right, the separation of the theory of contract of real right from the theory of contract of credit, as well as the non-causal nature that the effectiveness of contract of real right cannot be affected by the contract of credit. Scholars had recognized that the contract of real right should be related directly to the legality of content of real right and be different from the contract of credit in the aspect of content.However, the theory on the contract of real right was not mature In the early Republic of China; the legislators (civil law jurists) could not grasp the relevant system requirement of the contract of real right accurately and macroscopically. The immaturity of theory, which was reflected in the legislation, was the promulgation of the Registration Regulation of Real Estate in 1922, in which, the theory on the contract of real right had not got the policy support from the registration of real estate. Thus, the interpretation decrees on repeated pawn of the Central judicial Officer became the trigger of conflict among scholars upon the transfer mode of real property right.In 1927, the Discussion on the Contract of Real Right written by Mr.Hideo Yokota, who was the famous civil jurist in Japan, was translated into Chinese, in which, Mr.Hideo Yokota introduced the research achievements on the contract of real right in the civil law circle of Japan, and analyzed the explained meaning on the theory of the contract of real right combined with the civil law of Japan. The affirmation on the academic value of the theory on the contract of real right was demonstrated between lines of the analysis and discussion on the theory hereof. The article is of significant importance to the development of modern theory of the contract of real right in China, which enriched the theory on the contract of real right in the early Republic of China and prompted the development hereof in depth.From 1929 to 1930, the successive promulgation and application of the General Provision, Debt Part and Real Right Part in the Civil Law of the Republic of China stimulated greatly the research enthusiasm on the theory of the juristic act of real right. Although, the Juristic Act of Real Right was not defined expressly in the Civil Law of the Republic of China, the civil jurist showed no doubt on the adoption of the theory of the juristic act. And there were different opinions on the specific articles of the Civil Law of the Republic of China which manifested the adoption of the theory of juristic act therein among scholars, which was just the exhibition of the development level of the theory on the contract of real right. It was obvious the firm faith of the scholars upon the adoption of the theory on the contract of real right in the Civil Law of the Republic of China that made the theory on the juristic act of real right became the indispensable part in the works on real right jurisprudence in the late Republic of China.The theory on the juristic act of real right had developed more greatly in the aspect of research scope and depth in the late Republic of China (from 1930 to 1949) than before. Regarding the aspect of the definition of juristic act of real right, the theory hereof was not confined to the definition of Purpose Doctrine introduced from Japan any more; there was a tendency of diversification, and among them the theory hereof from Germany had been paid more attention to and agreed upon day by day.In the aspect of the reorganization of the nature of the juristic act of real right, the theory of the juristic act of real right had a qualitative leap in the late Republic of China. The scholars in the early Republic of China rarely discussed the nature of the contract of real right, and the reorganization to the nature of Regulated Form and nature of Delivery of the contract of real right by Mr.Hideo Yokota had not influenced the high identification to the Independence and the heated discussion to the Non-causal of the juristic act of real right by the civil jurists in the late Republic of China. The disposal nature of juristic act of real right, however, had not aroused enough attention by the civil scholars.In the aspect of establishing the relationship between the juristic act of real right and credit, the theory of juristic act of real right in the late Republic of China accurately defined three relationships between the will declaration of real right and credit, and discussed and interpreted the relationships respectively, especially the situation in which the will declaration of real right and credit coexisted could help to explain the existing working-out method of the juristic act of real right. While the situation in which the will declaration of real right and credit not coexisting could help to accurately distinguish the juristic act of real right and credit, and enable the non-causal of juristic act of real right to display fully. And the research towards the relationship between juristic act of real right and other juristic acts provided wide research space for studying the purpose of the juristic act of real right further.The development trend of the theory of juristic act of real right in the late Republic of China shows that the civil law scholars of China had gradually shook off the influence of the theory of the contract of real right of Japan, and began to absorb nutrition consciously from the civil law theory of Germany, which was the origin of the theory of juristic act of real right.The development course of the theory of juristic act of real right in China shows that the title for the theory of juristic act of real right in the late Qing dynasty, early and late Republic of China can reflect directly the development trial of the theory hereof in modern China. In the late Qing Dynasty and early Republic of China, the Contract of Real Right became the pronoun of the theory of juristic act of real right. Although, in respect to the classification of juristic acts, the civil law scholars did not deny the existence of sole juristic act of real right, civil law scholars preferred to follow the title of Contract of Real Right used in the civil law of Japan when applying and discussing the theory of juristic of real right. Till late Republic of China, with development of the theory of juristic act of real right, civil law scholars in China had shook off the influence of Japanese civil law, and the Juristic Act of Real Right had been accepted and applied by most scholars. Hence, in term of the development trend of theory of juristic act of real right in modern Chinese civil law, the From Contract of Real Right to the Juristic Act of Real Right can be used to summarize macroscopically.In the development process of modern theory of juristic act of real right, the civil law cognition to the public notification (Real Estate Registration and Movable Property Delivery) is the most critical. Thereby, it was the Delivery act that impelled Savigny, which is the father of modern civil law, to bring forward the theory of juristic act of real right. The development of theory of the juristic act of real right in Germany never neglected the existence of Delivery act; therefore, it is quite necessary to comb the cognition process towards the Registration and Delivery.The non-causal nature of juristic act of real right was the most controversial issue in the late Republic of China and even now. In the early Republic of China, the civil law scholars had not yet recognized the non-causal nature of juristic act of real right. In the practice of judicial trial, however, the non-causal nature of juristic act of real right had been applied practically. When the non-causal nature of juristic act of real right was brought forward by Mr.Hideo Yokota, the non-causal nature of juristic act of real right had become one of the Fiercest Debate Issues in the civil law circle.Although the theory of juristic act of real right in modern civil law had developed gradually, it triggered a significant effect to the legislation and judicial practice of modern China since the theory was introduced into China.In terms of legislation, although in the Draft Civil Law of Qing Dynasty, which was the first civil code in China, the title of contract of real right had not been used herein, we can still read the theory of contract of real right between lines of the articles. Although, the successive Draft Civil Law of Republic of China and the Civil Law of the Republic of China had revised part of the articles of the Draft Civil Law of Qing Dynasty, the theory of juristic act of real right still existed inextenso among articles.In terms of judicial trial, the theory of juristic act of real right had the most significant effect on the trial practice of Modern China, needless to say the civil judicial trial of the Central Judicial Officer and the Supreme Court in the early Republic of China, the precedents and judicial interpretations of the Supreme Court in the late Republic of China can still reveal the actual effects of the theory of juristic act of real right to the judicial trial practice.