A Study On The Juristic Act Of Real Right Theory

The purpose of this dissertation is to prove the theoretic gist that Juristic Act of Real Right Theory should be established in real right legislation in China, to clarify Juristic Act of Real Right Theory and other correlative theories and the necessity and feasibility of establishing the legal norms of real right, and to put forward the reasonable advice of improving the real right legislation from the viewpoint of the Theory.The methods in research and the point of view of this dissertation are as follows:Firstly, to research the historical conditions and the theoretic bases of the Theory established by German Civil Law from the viewpoint of the Theory, and to estimate the situation that to regulate juristic act of real right by juristic act of credit in French Civil Law and the feasibility of eclecticism in Swiss Civil Law.Secondly, to research the independence of juristic act of real right. (1)Whether the concept juristic act of real right correct or not;(2)Whether the juristic act of real right is an act of law;(3)The comparison of juristic act of real right and juristic act of credit right;(4)The research of juristic act of real right and public summons of real right. By the expatiation from above-mentioned four parts, disquisition prove that the existence of independence of juristic and significance of improvement of theoretic system of jus reform from the establishment of the independence of juristic act. This disquisition also expatiates the juristic act of real right that has existed and been accept by combing the legal norms of real right in General Principles of Civil Law and Law of Contract. As a result, the Theory should be established and improved, so as to improve the systematic nature of legislation and the veracity of the legal norms.Thirdly , to research the abstract nature of juristic act of real right , and make out that this nature cannot be the theory of the real right legislation in China. 1.To research the relationship between the independence and abstract nature of juristic act of real right , and point out the deficiency of Abstract Nature Theory which damages the benefits of seller and breaks the fairness in transaction .Concretely , to expatiate the difference between the results of obligations unjust enrichment and claim of recovering of original property and the difference between the protections to oblige cannot claim his right by obligations of unjust enrichment considering the safety of transaction. Therefore, the point that the Abstract Nature Theory cannot be established in legislation in China is finally put forward.2.To research the abstract nature and the system of acquisition in good faith. The establishment of system of acquisition in good faith covers the deficiency of abstract nature in wide-scale , and relieves advantage of party effectively . Thus , there has little necessity to establish the Abstract Nature Theory.3.To prove the deficiency of protection of transaction safety caused by the abstract nature by researching the abstract nature and unjust enrichment. Considering the existing laws, if the Abstract Nature Theory has been established, they would be altered thoroughly and it would go against the continuance and unification of legislation.Finally, the disquisition expatiates the relationship between the legislation in our country and Theory , and points out Theory is accepted by the existing laws in China, but it is not systematic and perfect, and on the other hand, real right legislation should be adopt the Independence Theory but not the Abstract Nature Theory.