The Real Right Behavior In The History Of Law

This thesis is generally composed of the study of the history of Real Right Behavior as well as the controversy and study of Real Right Behavior conducted by civil law circle of Korea. In the preface, discussions are made to propose questions and research methods. The content from chapter 1 to chapter 4 is about some discussions of the history of Real Right Behavior. In addition, some controversies of Real Right Behavior conducted by civil law circle of Korea and opinions of the author are presented in chapter 5, and the following is the conclusion of this thesis.In the preface, the author proposes the following questions, namely, whether the present questions about Real Right Behavior in civil law circle of Korea are resulted from the legislation defects and the incapability of making consistent explanation of R eal Right Behavior concept caused by those defects. Besides, this thesis mainly uses the methods of the law history theory to study the establishment process of the concept of Real Right Behavior and the legislation process and make clear the essential characteristics and functions of Real Right Behavior in order to lay a solid foundation to the solution of those controversies.Chapter 1 is about the study of the legal principle of the real right alteration in the Roman law. The kernel of this study is mainly concerned with the alteration ways of real right and the traditio in Roman law. In addition, it discusses the relation between traditio and possession, possession and causa and the causa of traditio, etc.Chapter 2 includes the methodology of the medieval law--the scholastic methodology and the systematic research of the causa in Roman law by the medieval law scholars using this methodology. Meanwhile, studies are especially made to research the causa putative of the traditio in ownership transfer of the medieval law scholars and the causa as the basis of constraint force. It aims to understand the process in which causa first totally separates from traditio and then progressively enters into creditor’s rights.In chapter 3, it studies the relevant legal principles of the ownership alteration in German law which is different from Roman law in law traditions, the foundation process of Auflassung and the registration system. Moreover, it reviews how creditor’s rights concept formed in Germanic law at the basis of Roman law, and studies the process in which causa concept in Roman law was compiled in titulus of ’titulus-modus’ theory. At last, it researches the compiling process of the ’titulus-modus’ theory in modern German law and the criticism to this theory.In chapter 4, it discusses Savigny’s criticism to ’titulus-modus’ theory and the birth of Real Right Behavior theory which substituting the former one. Especially, it makes clear of the application of Savigny’s theory of legal behavior in real right behavior theory, and studies the constitution of the no-cause of real right behavior theory. At the same time, it studies the criticism to Savigny’s Real Right Behavior theory and the legislation process of this theory in modern German law.In chapter 5, it studies the establishment process of Korean civil law and some regulations and theories related to the ownership alteration in German civil law, which occupies a significant position as explanation theory of Korea civil law. Besides, it separates Real Right Behavior centered controversies in Korea civil law circle into controversies related to the constitution factors of Real Right Behavior, independence controversies of Real Right Behavior and the no-cause controversies of real right behavior. It then researches corresponding positive and negative theories, and proposes the author’s opinions.At last, it comes to a conclusion, namely, these aforementioned discussions should be conducted at the functional level——the real necessity of these concepts which are acquired in the establishment process of Real Right Behavior.