On The History And The System Of French Property Law

The theoretical and institutional system of French Property Law has contributedimmensely to the property law of the continental legal system. Taking the evolutionaryprocess and institutional system of French Property Law as the theme, this thesis mainlyinvestigates the institutional sources of French Property Law as well as the thoughtfoundations, theoretical development, institutional structure, enlightenment and reference ofFrench property rights. This thesis discusses from the produce and evolvement of propertylaw in the Gaul, to the institutional system of property law in modern French society.Therefore, the discussion on the institutions and theories of French property rights in thisthesis will be of fundamental and leading significance.In the history of French property law, the Gaul’s-Roman times, the time of Frankishkingdom in Middle Ages, the time of French Civil Code, and the time of modern French civillaw are important times of development of French property law system. In the Middle Ages,the reformation of Roman law has brought the thought of civil law system. Modernphilosophy has brought rationalism and the logic syllogism method to French civil law.French Enlightenment, historicism, and legal positivism laid the thought foundation of Frenchproperty law. In French civil law, the theory of subjective right and the patrimoine is thetheoretical development of the property theory. Close relationship between res and propertycan be found under this view. In French Civil Law and other laws, French property system hasbecome the property system based on the property right. The property right system centeredon the property right has become an important support for French Civil Code. Thedevelopment of social economy provides a broad scope for the legislation technology ofFrench Property Law. In2006, French Property Law was reformed and added the fourthvolumn of guarantee. The new property legislation is conducive to the development of Frenchsocial economy.In addition to the introduction and conclusion, this thesis is devided into five parts.The introduction is concerned mainly with the background, method, value andsignificance of the study in this thesis. According to the statement of the introduction, thisthesis illustrates the problem consciousness of academic research. There are solid profoundhistorical and ideological foundations behind the standpoint. The studies on French Civil Lawwill help the mixing of civil law thoughts. Of course, the studies on the theory and system of French property right also should be beneficial to the studies on the theory and system ofproperty right. The studies on the theory of French civil law will borden the academic visionrange of Chinese civil law. The Paris Conference in1900has positive effect on the studymethods of comparative law. This dissertation is mainly about the study on the theory ofFrench property right. The writing method of this thesis is utilizing knowledge derived frommany subjects such as history, philosophy, sociology, economics, ethnology, and law, on thebasis of collecting extensively the momographs and thesises on French property law.The first chapter studies the source of French property right system. It is a rough job tostudy the origin and historical development of French property law. French documents ofFrench property right are really anarduous and complicated to understand. The concepts ofproperty and the system of property right can be found either in myths and legends, innational custums, or in statutes. Property right is the bedstone of the survival and developmentof human beings, who have been altering the nature and gradually the concept of property istaken shape. The concept of private property distinguishes the concept of “mine” from that of“yours”. The concept of Gauls, Roman, Franks, and French about property has influenceFrench property law. Historically, French property right has long history, especially the landsystem. From the times of the Gaul, French land had been belonged to the Lords or Kings.Since Julius Caesar subdued Gaul in50B. C, Roman law has been spread in the Gaul, andthen the property concept of Roman law has been embedded in the Gaul’s lives. Since then,the invasion of the Barbarians brought German property law. In the Frankish kingdom, SalicLaw is the most important code in the history of French property law. Thereafter, the Frankishkingdom united the Gaul. The feudal system of the Frankish kingdom led to the result that thelands be subinfeudated to a lot of lords, forming the manor system and grand estate in thedomain of the kingdom. Consequently, economy in Middle Ages is mainly feudal manoreconomy. Feudal lords like kings, nobles, and knights were formed in feudal society. Thehierarchies among the feudal lords kept the Frenkish kingdom in the state of feudal separation.Feudal lords implemented judicial administration on their manor lands by right of their ownland property. The Frenkish kingdom has typical European feudal legal system, includingGerman common law, Roman law and ecclesiastical law. Different systems and theories ofproperty law were formed in different common law. The basis of property in common code,royal legislation, judicature and property right, the reformation of Roman law and propertylaw has become the basis of the property right of Frenkish kingdom. The second chapter discusses the thought foundation of French property right. Theconcept of French privite property is the extension of French spirit, especially of the belief,thought, custom, and social condition. Since the11th century, the reformation of Roman lawhad profoundly affected the development of French civil law and French property right.Glossators, Commentators, and legal humanism had remodeled the spirit of Roman law,which brought classical spiritual force to the unity of French property right. The property rightsystem of right in rem and right in personam was formed in the times of Glossators. Whilelegal humanism had an important effect in the thought system of French civil law. Logicaldeduction and the First Principles had become an important thought basis of civil law system.Meanwhile, the thought of rationalism had being affecting the thought of French civil law.The thought of didactisicm had a profound effect on French intellectual and French civil law.The thought of some famous thinkers, such as Descartes, Rousseau, Domat, and Montesquieu,had become the supporting spirit of French civil law. The treatises of scholars on civil law likeDomat and Pothier had a great influence on the legislation of French Civil Code. It can beseen that Roman law and Enlightenment thinkers established an rational thought basis for theinstitution and system of French property right. Therefore, the institution and system ofFrench Civil Code has been affecting many countries and areas in continental law system inthe perspective of modern property law. The reformation of Roman law and the developmentof enlightenment provide the basis of French property right in the thought and institution. Thestudies of Roman law carried on by the civil law scholars who have been profoundly affectedby Roman law will be conducive to the perfection and unity of the system of French propertyright.Chapter three is the theory extension of the French property law. In the French civil law,the subjective right influences the property greatly. The legal science has the quality ofcertainty and the logicality, and certain vagueness. The subjective right is the combination ofthe certainty and vagueness. The French civil law is the legal science of individual right. Inthe legal theory, the subjective right and the objective law is the theory basis of the Frenchcivil law. Generally speaking, the objective law exists in the society and the subjective right isthe realization of the individual right. Savigny and Windscheid had defined the subjectiveright as the willing accepted by the objective law. The willing of the right subjective issatisfied under the legal basis of law system. The objective law decides the rules of thebehavior of the right subjective. But the right subjective can utilize the right freely. Jean Badin puts forward the appurtenance-matrise theory in the le Droit Subjectif. In the Droit Subjectifet Situations Juridiques, P. Roubier holds that it is necessary to restrict the use of the conceptof the subjective right. In the civil law field, the behavior which is not forbidden is given thesubject right. The subjective right can be divided into the property, the obligation, theintellectual property and the personality. The patrimoine is the unique theory of the Frenchcivil law, especially in defining the subjective right. The subjective right of an individual isconsisted by the property and obligation, including the present and the past, the assets and thedebts. In the academics of French civil law, the critiques about the patrimoine exist for a longtime. But the scholars of French civil law begins to criticize and reflect the theory ofpatrimoine. In the judicial practice, the problem of the patrimoine is more serious. Under thebasis of the subjective right and the patrimoine,The relationship between the res and theproperty becomes more clearly.Chapter four is the system and the structure of the French property. The French Code Civil isbased on the ownership. Based on the possession, the ownership takes shape. The ownershipis the core of the system of property, and the start and the attribution of property. To avoid thedual ownership, the ownership is divided into the usufruct, the servitude, the guarantee etc.However, the system of French Code Civil is the thought basis of the property, which givesexpressions to the absolute ownership. Since the twenty century, the social thoughts triggerthe change of the legal thoughts, especially the socialization of the property. Different socialthoughts bring to different contents of the property. The flexible laws of the society influencethe notion of the property and cover the all fields of the society. The system and legaltechniques can not confront the needs of the industrial society. The system of the property hasextended the scope out of the code civil. The property has the characteristics of the privatelaw and public law. In the countryside and city, the property has more and more socialobligation. At the same time, the public property has occupied some space of the system ofproperty, like nationalization, legal servitude, restriction of ownership. The Code of UrbanPlanning, The Code of Construction and Residence, The Code of Country, The Code ofEnvironment begins to have relationship with the code civil. Therefore, it is difficult todiscuss the property just in the fields of the civil law.Chapter five is the inspiration and the implication. In2006, the French Code Civil hadadded the fourth volume of the guarantee. In the system of property, the guarantee takes aspecial place. The social development needs the quick and safe ways to finance. The new legal techniques of movable property and immovable property come into being, like inventorypledge. In addition, there are some unique theories of French civil law, like the theory of theanticipated movable property. The divers and intangibility of the property force to change thebasis and the system of the property.In conclusion, the thesis pays attention to the future of the French property. The tendencyto the movable property is obvious in the system of the property. The intangible property willplays a more important rule in the social life. The merge of the public law and private law willchange the system of the property.