On The Transmutation Of Usufructuary Right’s Object

The object of usufructuary right is a "surprise" field In our country.For a long time, understanding of usufructuary right object is limited to the real estate.No one seems to realize what the problem is, because the thing of German civil law is limited to corporeal thing and corporeal thing is just object of real right.But in Germany civil law not only the corporeal thing but also the right is the object of the real right. Tracing the history of Roman law and civil law in countries of civil law system, the objects of usufructuary right are much richer than ours.Why the objects of usufructuary right turn so narrow in our country? what is the effect that the narrow object of the usufructuary right brings to the development of the system of usufructuary right?This paper attempts to explore this problem and come to the conclusion that usufructuary right’s object should be extended.Above of, this article has no intention of challenging the legitimacy of the German civil law and dares not rudiments of a positive conclusion just trying to put forward feasible demonstrating path from another point of view and hope to be able to cause people thinking on this question. As the argumentation of the conclusion, the main text of this paper consists of five chapters:First chapter of the thesis is attempting to icome upwith the general analysis and research methods of usufructuary right using this important conditions of the object of right theory.This kind of research methods are essentional for the development of usufructuary right’s theory and system,also raising the object of usufructuary right which is the basis of this paper.To study the usufructuary right’s object, the definition of the right object’s denotation and the relationship between the thing and the object of right should to be resolved with hierarchical theory of the object of rights and the theories of the analysis of categorization in concept.On this basis, the path of usufructuary right objec’sresearch is determined,which namely looking up the history of object’s evolution,at the same time recognizing the influence of different institutional inertia and social reality.Paper in the second chapter generalizes the transmutation of the usufructuary right’s object from scratch for the first time.The development of private right system is often accompanied by the evolution of the right’s object and with the improvement of the right system, the object problem appears gradually.In Roman law, the usufructuary right itself was incorporeal thing, which is the object of the ownership and so the abstract understanding of its object is not at all.Nevertheless the specific external manifestation of usufructuary will still existed and the usufructuary right’s objects in the Roman law were much more than what we can imagine today.These phenomenons could prepare the extracting of the object concept and help to the practice of open building of usufructuary right simultaneously.To the middle ages, the usufructuary right eventually became an independent rights out of intangible things.with the process of tmoving towards independent rights from the object, the object of usufructuary right had gradually become a kind of sense of law exists and eventually completed the first evolution process.The third chapter deals with the reflection about the second evolution of the object in the process of the ownership’s object turing from incorporeal thing to corporeal thing.German civil law slamed Gaius’ s incorporeal thing concept and excluded right out of the scope of thing.The thing was limited to res corporales as the object of ownership.This kind of treatment, although logically overcomeing the contradiction between the right’s object and the private right’s system in the French civil code, could not explain why the right usufructuary can exist. The general concept of the right’s object could not be abstracted from the general principle of German civil law to solve this problem.on the contrary,it was avoided causing the existence of loopholes in theory.At this time, the object of independent usufructuary right needed be determined,but the absence of general object of rights in German civil law led to incomplete application of the usufructuary right.Eventually the scope of real right’s object in the German civil law actually became narrow and this also led to the misreading that usufructuary right’sobject only can be res corporales when Japan 、China and other countries or regions inherited the German civil law.In this way, the object of usufructuary right turned from broad to the limit in the process of the second evolution.The thesis in the fourth chapter is expectation of the third transmutation that Object of usufructuary right converted from corporal thing to the right.From the analysis on inspiring process of the usufructuary right in China 、Japan and other east Asian countries,the reason that object of usufructuary right is further narrowed to real estate lies in the misunderstanding of the German civil law theory and also the wrong understanding to the function of usufructuary right.On the analysis of the unreasonable and the negative effect due to the narrowed object, the extension of the evolvement of the usufructuary right is demonstrated from the two aspects of theory and reality and the dimensions and limits of object after the third transformation of the usufructuary right are described.In the fifth chapter the effects of third usufructuary right’s evolution are described and analyzed.The transformation of Usufructuary right’s object from narrow to the extension will bring the corresponding effect in many aspects, such as theory, legislation and judicial, which will promote the reconstruction of the usufructuary right’s system.In theory, the transformation contributes to re-examine the status and content of the usufructuary right;On legislation, it prompts lawmaker to face up to the development of modern society and update ideas with more expanded standard on emerging equity into the usufructuary right. If the land contracted management right and the rural usufructuary of land building can become object of another usufructuary right,the theoretical certificate can be provided for a new round of rural property rights system reform with the core of ownership, management, contract right separation and separation proposed by the Third Plenary Session of the 18 th CPC Central Committee.Not only that, such as the rights of the mining right, water entitlement right basing on the the use of natural resources,for its objects conforming to the basic attributes of usufructuary right,shall be definited as property right;On justice, the people’s court basing on proper understanding of usufructuary right object shall come into play the create function of law and explain the numerus clause so that the people’s court can accept the new concept of usufructuary right and handle the usufructuary right’s disputes with a more open and advanced philosophy.