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Obligatory Right That Can Exclude The Third Party

Posted on:2005-01-13Degree:MasterType:Thesis
Country:ChinaCandidate:L HeFull Text:PDF
GTID:2156360122485388Subject:Civil and Commercial Law
Abstract/Summary:PDF Full Text Request
According to traditional civil law theory of continental legalsystem, property rights are consist of jus in rem and creditor's right.When it comes to jus in rem, the obligee can dominate hissubstance directly and enjoy the profit directly which is derivedfrom the substance. At the same time , the obligee also can excludeothers' interference. The essence of jus in rem is located inabsolute protect, the particular thing should be belonged to theparticular man. On the other hand, creditor's right happened inparticular parties. The relationship of creditor and debtor is a kindof law relationship in which the creditor only can demand thedebtor fulfil his obligation. So , creditor's right is regard as arelative right. Creditor only can ask for debtor instead of others tosatisfy his need, and creditor's right can not withstand the thirdparty. It is not only because of essence in creditor's right, but alsobecause that the relationship of creditor and debtor does not openin public which may affect the safety of bargaining. If carry out the setting of effectiveness between jus in rem andcreditor's right in traditional civil law absolutely, the creditor's aessuum can not be realized because of the excluding effectiveness ofjus in rem. After a long time , it will destroy the justice andstability of social order. In order to protect special creditor's right, the law make someespecial statute which endue creditor's right an specialeffectiveness that can exclude the third party. At the same time, thecreditor's right can be protect entirely by means of confining thejus in rem's right. In other words, the law make the creditor like jusin rem who can acclaim right to others. In modern times, the areas in which creditor's right can begrant the particular effectiveness are leasehold, estate preliminaryregistering and managing contracts and dividing contracts amongco-owners. Different effectiveness of creditor's right are not thesame. For example, in leasing, in order to maintain the societystability, and satisfy people's living needs and make sure that thetenant can possess and use the lease, the law statute that if the thirdparty buy the lease, he will become the lessor who take hand of theformer lessor. In estate preliminary registering, it is very importantfor some certain creditors to realize his right. So, the law make thecreditors exclude the third party by means of preliminary register.If the owner sell his estate to others, and disturb the creditor'sright, the sell-buy contract will became invalidate. In order to makethe best use of resource and keep stability among co-owners, thelaw statute that if the co-owners have made managing contracts anddividing contracts, people who become new co-owner should obeythese contracts. Though different creditors have different effectiveness, theyall can exclude the third party which look like the jus in rem.Otherwise, they are still be creditor's right. This theory make greatsignificance to developing of civil law theoretics. This thesis willdiscuss the basic problems from its academic base, fundamentalform, legislative meaning, law balance and applicable conditions.After observe on other country's legislation and make comparing ofthem, this thesis will give some advice to our country's legislation.
Keywords/Search Tags:Obligatory
PDF Full Text Request
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