Generalized Res Of The Civil Law

This essay has five parts which including preface, conclusion, and six chapters of main text. The primary coverage of each part is as follows:Chapter Ⅰ:the comparative analysis and the historical evolution of the term "res" in civil law. Based on the analysis of the historical evolution of the concept of the term "res" in ancient civil law (mainly Roman law), we can take a conclusion that:first, in the beginning, the conception of "res" has some kind of spontaneous. But when in the mid and late age of the Roman law, the term "res" has experienced the jurist and legislator’s transformation which caused more artificial reason. Second, in Roman law, the conception of "res" is not a static state, but facing a dynamic evolution. Third, the "res" in Roman law includes res incorporeal, which can be seen as the achievement of the harmonious between practice wisdom and the theory. The term "res incorporeal" in Roman law is also facing a dynamic evolution. The author also has summarized the character of "res" in Germanic law by comparison Germanic law with Roman law. There have two findings about "res" in Germanic law:first, like "res" in Roman law,"res" in Germanic law also is facing a dynamic evolution and includes res incorporeal in the latter. Second,"res" in Germanic law obeys the pragmatic path. The term has never experienced the jurist and legislator’s transformation, instead of many specific res in "res".Generally speaking, the property law systems in two legal system have different sources, different historical evolution. But they also have commons in development path: res generalized (simplified mode)—res narrow (abstract mode)--res generalized (complex and abstract mode). This development path gives a challenge to the whole property law system.Chapter Ⅱ:the conflict and paradox about "res" in china’s civil law. Through out the analysis of the concept and conflict of "res", this essay has given the fact that there have some conflicts between the concept of "res" and the fundamental theory of property law. In the existing law, the term "property" has been used in different sense. On the one hand, the "property" has been not limited in the scope of "res corporeal". On the other hand, the definition of "property" is too fuzzy to apply to law practice. To solve this problem, the legal framework becomes to be confused. We have not done effective research on "res" and "property", thus, using "property" instead of "res".After the analysis of three cases, this essay proposes that we should use the term "res generalized" to govern all the objects of property right. And let it maintain an open system, while it can adopt new object of property right as necessary.Chapter Ⅲ:The concept of "res generalized":connotation and denotation. This essay has analyzed the concept and the character of "res generalized". Combined with the background of the current drafting Civil Code, the author has analyzed and summarized the openness of the denotation about the concept of "res generalized", and then draw a conclusion:let it maintain the openness of "res generalized", which will provide a conceptual and theoretical basis to the draft about Civil Code in the future. Section III in this chapter has analyzed the scope of the denotation about the concept of "res generalized", as well as res incorporeal (right), network virtual property (right), securitization right, organs separated from the human body, cloning, genes and genetic information, animals, prohibited the circulation things, restrict the circulation things and immeasurable objects.Chapter IV:The necessity and theoretical foundation of the establishment of the term "res generalized". Firstly, this essay has analyzed the economic and social conditions for the birth and development of the term "res generalized". According to the viewpoint of historical materialism, the right must not exceed the economic structure of society as well as constrained by the economic structure of the cultural development of society. The human society has been developed into the information economy age after the agrarian age, industrial civilization age. The global world is undergoing profound changes as the human intelligence played an increasingly important role in the economic and social progress. The wealth while created by human intellectual has been accumulated rapidly. Meanwhile, the social relationship also becomes increasing complex. All the things have given its contribution to the rebirth and development foundation of the term "res generalized". Secondly, the development of philosophy, economics and jurisprudence has laid a solid theoretical foundation for the development of the term "res generalized". Although there are still some problems of the theories about Kant, Hegel, Locke, Rousseau, Coase, Barzel, their theories have given a help for us to find the nature of "res generalized" from multiple angles and levels.Chapter V:stylized res in Civil Code based on the "res generalized". Based on the different forms of res, the transaction form and protection rule may not be the same. It is necessary to do stylized research on "res generalized". Depending on the introduction of the types of res in Roman law, and the comparison with the Germanic law, as well as the analysis of modern civil law, this essay will give its own suggestion about the stylized path of res.Part VI:The concept and the codification of "res generalized". It is also the core part of this essay. Firstly, this essay has introduced the suggestion about the codification of res generalized---built a complete and open property law system. The author has analyzed the rule about res generalized in the future civil code. Combined the res generalized and the draft of civil code, this essay finds two different legislation mode, selects one of the best legislative modes by comparison, gives the author’s definition about res generalized.