Research On The Principle Of Differentiation Of Property Rights

The principle of distinction for the change of real right alteration is one of the most important principles in the field of real right alteration,and it has major theoretical and practical significance.The principle of distinction is derived from the die Lehre der Verfügungsgesch?ft in the German Law;however since it was released in China,disputes about this principle never stop.Although the principle of distinction employed by the real right law that was released in 2007 has become a consensus between the academic circle and the practice field,the disputes about the principle of distinction keep going,only that the orientation of the disputes has turned to the interpretative problems from the legislative problems.In times of the Roman Law,action was divided into action in personam and action in rem.The scope of application and procedure requirements varied with different types of action,revealing the categorization trend of the distinction between different classifications of right.However during this period concepts of legal act and Verfügungsgesch?ft have not been formed.Therefore from the result it can be seen that the principle of distinction that reflects the distinction between Verfügungsgesch?ft and Verpflichtungsgesch?ft did not exist in the Roman Law.The development and changes of the forms of ownership change in the Roman Law showed the looseness of strict formalism and presented that the contract of sale itself could not achieve the real right alteration.Although the Roman Law had no principle of distinction,it provided high quality theoretical and practical basis for the future discovery of the distinction theory.Featuring the rational glory of freedom and equality,the French Civil Code has been sticking to the principle of identity in the field of real right alteration,indicating that once the contract is established the ownership is altered.This means that there was no ground for the principle of distinction to exist in the French Civil Code.In the German Law,before the die Lehre der Verfügungsgesch?ft was presented by Friedrich Karl von Savigny,the theory of titulus and modus is the mainstream theory in the field of ownership change.During that period,legal act with the nature of creditor's right is deemed as the titulus,delivery or the factual behavior representing delivery is deemed as the modus;the result of the ownership change can only be achieved based on the consistency between titulus and modus.Fundamentally speaking this is the opposite of the theory of distinction.Through systematically criticizing the theory of titulus and modus,Savigny put forward the systematic die Lehre der Verfügungsgesch?ftr theory,which is recognized by the laws including the Sachsen Civil Code and the Acquisition Act of Prussian Land Ownership.The German Civil Code has become the most typical law to adopt the theory and it has become the most thorough embodiment of the principle of distinction.Although countries like Switzerland and Austria did not adopt the die Lehre der Verfügungsgesch?ft theory in their statute laws,it is undeniable that this theory has attracted quite a lot attention from these countries,and it has been reflected upon in the field of legal hermeneutics;some legal precedents have shown recognition of the concepts of distinction.Regarding the principle of distinction and the die Lehre der Verfügungsgesch?ft theory,the relations between Trennungsprinzip and Abstraktionsprinzip are quite close.German scholars have quite unanimous cognition on the implication of Trennungsprinzip,which is the distinction between two kinds of legal acts with different natures;while Chinese scholars have some disputes about it.As for Abstraktionsprinzip,most viewpoint of Chinese and foreign scholars consider that it mainly refers to the effect abstraction,indicating that the effect of Verfügungsgesch?ft exist independently and is not influenced by the causal acts.The author of this paper agrees with the mainstream viewpoint,which is that Abstraktionsprinzip refers to effect abstraction.Scholars have different opinions about whether Trennungsprinzip necessarily leads to Abstraktionsprinzip logically;some are positive about it and some are negative about it.For this question Professor Sun Xianzhong has made a third attempt besides those two opinions.For the first time in China he has presented the principle of distinction,trying to explain this question from a fresh angle.He considers that the significance of the principle of distinction is embodied in two aspects.Firstly whether the acts of debt as the cause take effect or not should be decided by its own element;it cannot be decided by based on whether the real right is altered.Secondly real right alteration takes the delivery of movables and the registration of real estate as the necessary condition;causal behaviors taking effect does not lead to real right alteration necessarily.Although in specific elaboration,distinction is embodied in the distinction between causal behavior and real right alteration,the internal legal basis is divided into the distinction between two kinds of legal acts and it has expressed its standpoint that the establishment and going into effect of causal behaviors are not deemed as the sufficient conditions for the result of real right alteration.After the principle of distinction is presented,constantly there are disputes about its implication;there are mainly two viewpoints,which are “the distinction between the causal behavior and the real right alteration” and “the distinction between Verfügungsgesch?ft and Verpflichtungsgesch?ft”.After the real right law is released,although the legislative body has adopted the first viewpoint,there is still space left for further explanation.As a basic question of the principle of distinction,we consider that Verfügungsgesch?ft should not only exist independently,it also exists independently from the act of debt.From the perspective of effect,these two are also independent from each other.Concerning the definition of the basic connotation of the principle of distinction,firstly it is necessary to admit that this principle presents the distinction between two kinds of legal acts with different natures.Concerning the basics of the principle of distinction,its conceptual foundation is composed of the rules of justice and autonomy of private law;its factual basis is composed of the alteration of the trading pattern caused by practical development;its normative foundation is composed of the refinement of the distinction between real right and debt right,announcement and public confidence,specific object of real right and the declaration of intention.The principle of distinction mainly exists in the field of real right alteration caused by legal acts.The real right alteration patterns in the civil law system are mainly divided into the intentionalism and the formalism.The fundamental distinction between these two is that the intention of the party involved can directly produce the effect of real right alteration.The real right alteration patterns of formalism can be divided into creditor formalism and formalism of real right;these two focus on different fundamental causes for the real right alteration.In the Anglo-American law system,the property right transfer of the real estate is mainly achieved through delivery of deed.In civil law countries,France sticks to the alteration pattern of intentionalism,which is inconsistent with the principle of distinction.Germany sticks to the formalism of real right,and the principle of distinction can be carried out thoroughly and effectively.In form Japan adopts the Pandekten system while it adopts intentionalism for the alteration pattern,causing numerous disputes since it cannot justify itself.The legislation in Switzerland and Austria adopts the alteration pattern of creditor formalism,but it has gradually recognized the independent existence of agreement o real right in scientific principles of law and legal precedents.In the Anglo-American law system,the real right alteration of real estate is achieved through the delivery of deed,and this process embodies the independent agreement of real right,of which the content is real rights transfer.In the field of real right alteration of movables,with the gradual separation between the property rights transfer and the transfer of possession,the latter is no longer equipped with the formal function of property rights transfer,which has to be achieved through the clear agreement about the property rights transfer between parties involved.Although the independence of the agreement of real right is recognized,the Anglo-American Law does not follow the Continental Law in terms of the non-causative nature,which is an outcome of multiple aspects including systems,theories and practices.Under the background of unique system in the Anglo-American Law,questions related to the transfer effect of the real right of the subject matter can be answered voluntarily,and there is no need to resort to the estimation of validity of contract.In the context of Chinese law,studying on the principle of distinction has special meanings.Firstly from the perspective of the connotation of the principle of distinction,scholars fail to reach an agreement on it,and there are mainly two different opinions,which are the distinction between two kinds of legal acts and the distinction between causal behavior and real right alteration.Correspondingly these two opinions are completely different in the distinction of effect relations.Although Professor Sun Xianzhong endorses the distinction between two kinds of legal acts with different natures,yet from his explanation for the meaning of the principle of distinction no conclusions of these two having no effect can be drawn.While the opinion of the distinction is the distinction between causal behaviors and the real right alteration fundamentally denies these two having no effect.In Chinese positive law,from the draft civil in Qing Dynasty to the judicial explanation for the sales contract by the SJC in 2012,the legal principle of the distinction between legal acts keeps strengthening.Although there are setbacks,as the legal principle of distinction keeps showing scientificalness and practical validation,the distinction between Verfügungsgesch?ft and Verpflichtungsgesch?ft has been popularized.Through conducting systematic organization on cases of principle of distinction,especially through analyzing the principle of distinction applied in typical cases,the understanding in practice of the principle of distinction has gradually turned from “the distinction between causal behavior and real right alteration” to “the distinction between Verfügungsgesch?ft and Verpflichtungsgesch?ft”.On the basis of the abovementioned practices,it is necessary to conduct reflection and reconstitution on the connotation of the principle of distinction in the context of Chinese law,instead of merely conducting definition from the theoretical perspective.The author of this paper considers that defining the connotation of the principle of distinction in the context of Chinese law needs to focus on two aspects.The first is that it is necessary to admit the objective existence of Verfügungsgesch?ft and its distinction from Verpflichtungsgesch?ft.The second is to properly ease the effect abstraction of Verfügungsgesch?ft and Verpflichtungsgesch?ft.Currently China is in the stage of compiling the civil code.From the ideas released by the legislative body,the compilation of the civil code is to be divided into two steps,and enacting the general provisions of civil law is to be the first step.The legislative mode of the general provisions is derived from the Pandekten system,emphasizing high degree of summarization and abstraction.Under such system,for the system design it is necessary to admit the distinction between different rights.The principle of distinction should be properly embodied in the legislative process of the general provisions of civil law for two reasons.Firstly Chinese jurisprudence is different from the German Law;secondly it is necessary to clarify the legislative disorder in the relations between real right and debt right in laws in force.Regarding the specific ways to realize it,the author of this paper suggests take examples by foreign instance of legislation and practices of suggestion drafts made by some scholars.Specifically the first step is to define the basic meaning of Verfügungsgesch?ft and Verpflichtungsgesch?ft and their respective effect;based on the first step,rules of the unauthorized disposal should be re-designed,thus to further present the connotation of the distinction between Verfügungsgesch?ft and Verpflichtungsgesch?ft.