The Reflection On The Conception Of The Thing And Its Systematic Value For The Dichotomy Of Obligation Law And Property Law

In this Thesis, the author wants to discuss the conception of things and its function in the dichotomy of obligation and property law in the civil law tradition, the German civil law is the main discussing object. It divides into five parts, in which the problem was discussed from different directions. The historical exploration and dogmatic analysis is the major method.The Thesis have firstly discussed about the formation and development of German civil code, the relationship between statutory law and case law has been paid much attention. Roman law is not systematic organized; it is the collection of resolutions for individual cases. But in this cases system it is not short of some basic conceptions. The pandect law school has transformed the classic roman law into a coherent system. The codification of pandect civil law in Germany has however not prevented the Judgers from making new rules in accordance with the requirement of social development. The verdict has its factual binding effect for the following similar cases. Statutory law and case law are both law sources in today German law reality. From this point, the strict system based on the construction of exact conceptions is not the reality of the German civil law, and is not worthy of pursuing, an open and pragmatic code has its value in rules collecting and easy-reading effect, is to welcome.With this judgment the author comes to the conception of the thing and its systematic function. It is clear, that in the German civil code the importance of the thing lies in property law, things in obligation law is not technical. After obligation law modernization reform in 2002, the difference between things purchase and rights purchase had been lessened. The thing conception reflects the two-fold separation of obligation law and property law.The pandect system, which distinguishes strictly between obligation and property law, has its roman law roots. It thinks itself as the explanation of the classical Roman law. However, as mentinede above, Roman law itself is not systematic, the historical school has developed its system on the one hand with the help of objective idealism philosophy, on the other hand based on the primitve conceptions of classical roman law. From the Gaius system to Pandect system necessities three steps:firstly, obligation is to cut out from things and suits in the Institut system, this step has become in earlier times the reality. The natural right theory has helped to develop the idea of private subjective right, the idea of subjective right theory is important for the two-fold distinction of property right and personal right. The historical law school has made this distinction stricter, which means the two legal fields are not related with each other. Property law is an independent and autonomous law field in constrast with its counterpart, i.e., obligation law.After the codification of the pandect system, the pandect law school has disappeared, the scholars made their efforts more on explaining the code. However it is soon after the codification that the conception of object and its relationship with things has occured. Incorporeal things and corporeal things are both the object of absolute private property right. The property law with its corporeal object and the intellectual rights with its incorporeal object is logically no problem. As regards to the relationship between the property right and the intellectual property right, there are mainstream opinions which hold that the two has fundamental similarities. Some civil law scholars have tried to make use of the institutes of property right to explain the intellectual property right. The intellectual property right obeys, for example, typicity, publicity, absolute legal protection, and other property law principles. This approach seems successful and useful. At theoretical level it is possible to take the intellectual property right into the traditional property law system.At the positive law level, the property law has undergone its expansion either. This development reflects itself in two different directions, on the one side, the rules of Essential parts of a thing has already little binding effect on resolving the related cases, the trend of separation is well rooted in the judiciary Verdicts. On the. other, the economic and functional one thing has more and more greater importance at the legal level than before. German Property law has expanded by itself.The expansion of the traditional property law should be paid much attention. Under the possibility of the intellectual property’s entering into the existent property law system, the importance of the conception of the corporeal thing has only little systematic value for the construction of property law. The development of German civil law is not out of legal practice and individual cases resolution, the importance and shape of outer system at theoretical level has modified and changed.This is only the one side of the problem. As mentioned above, the conception of things has its importance on the two-fold separation of obligation and property; however, on the background of legal method updating and sight in the legal institution in the civil code, the validity of this separation is to be suspected.First to advance is that, the rules of possession can not well coordinate with this two-fold separation. The legal position of possessor is neither relative nor absolute in the existent system. Possession is regarded as a fact. The author but don’t agree with the factual possession opinion. He takes possession as a legal position which similar but weak as ownership. At the same time, the reason that civil law protect possession is to protect the first control of the possessor, but not merely the legal peace. So the protection of possession can not stronger as the protection of right. In the lawsuit of possession protection, it is ought to permit the objections of the right holder.The shortage of dichotomy is not limited in mere possession protection, the the possession based on obligation relationship, is also contradicted with the strict distinction between personal right and property right. There are many German lawyers criticized, in considering the possession protection, this two-fold separation. The weakness of the strict distinction between personal right and property right in great degree lies in its deficiency to explain the possession protection. The relationship between person and things is complex, and can not be explained merely by distinction between the control of other person’s behavior and the control of a thing. Man can control a thing on the basis of personal right, either, which is not to be regarded as an abnormal exception.The German civil code has however also not followed the strict separation of personal right and property right. The possession protection based on personal right is only one aspect of the matter; in fact there is a system of non-separation between personal right and property right, which exists also in the German civil code. In history there is a conception of "ius ad rem". It is abandoned by historical law school, in civil code it is regarded by some scholars however as still alive. It showed itself in "temporary prohibition of disposal" in movables and in immoveable both by "the registration of the priority notice" and "temporary prohibition of disposal". In Intentional damage contrary to public policy, which is regulated in section 826 BGB, the first buyer has in fact also a prior legal position directed at the saled object to the second Purchaser which with knowledge of the first Purchaser.Out of the moral value of protecting the first purchaser, which is also the partial reality of the German law, the author takes for that, the possessor with personal right should be protected like the case in movables, that means to protect the first purchaser against the registered later purchaser. The possession in movables and in immovables should be both protected and equally. The results of which is the relativity of the effect of Registration. The reasonableness of this protection lies in the stability of personal right in the utilization of immovable things. The protection of the first obligee has its moral justification. It is also worth to be mentioned that, the equal protection of right also requires the protection of the first obligee and the first possessor.All above, the pragmatic property system is ought to be organized according to the substantial moral values which upholding the existed institutions, and not based on the formally conception construction. The property law should not exclude the intellectual right, the two-fold separation of personal right and propery right has only limited theoretical value and little practical importance.