The Objectivity Of Dingliche Rechtsgesch(?)ft And Its Relationship With Abstraktionsprinzip

The theory of dingliche Rechtsgesch(a|..)ft, consisting of three maindoctrines — doctrine of Trennungsgrundsatz, of externalism, and ofAbstraktionsprinzip, was founded in the middle of 19th century. Since the creation ofthe theory, it has been received a lot of fierce criticisms, which are mainly focused onthe doctrine of Abstraktionsprinzip. But because the doctrine of Trennungsgrundsatzis the logical basis of doctrine of Abstraktionsprinzip, the scholars made drasticattacks on the doctrine of Trennungsgrundsatz, so as to fundamentally destroy thetheory radically. Beginning from the analysis of the rule about deed in common law, the thesisdemonstrates that the dingliche Rechtsgesch?ft exists in the conveyance of realproperty exactly. In addition, the thesis also illustrates that the dinglicheRechtsgesch?ft exists in the delivery of personal property by analyzing the form ofdelivery, the essence of performance, the effect of refusal by vendee, and the void andvoidable title in common law. Thus, the author concludes that the dinglicheRechtsgesch?ft does exist in the passing of proprietary right objectively. As theobjective existence of contract, the objective existence of dingliche Rechtsgesch?ft isthe result interpreted by the theory of civil law concerning with the reality. In thissense, it is an objective existence in civil law theory. After demonstrating the objective existence of dingliche Rechtsgesch(a|..)ft, theauthor furthermore makes an overview about the Abstraktionsprinzip from a historicalpoint of view. And on the basis of the overview, the author naturally concludes thatthe Abstraktionsprinzip is related to certain historical background. It is not a logicalresult of admitting the objective existence of dingliche Rechtsgesch(a|..)ft, but a result oflegislatorial choosing based on some sort of valuation. In other words, it is notAbstraktionsprinzip constitutionally and vice versa, it is purely the result oflegislatorial choosing. Although the doctrine of Abstraktionsprinzip has made somecontribution to remove the doctrine of essential- examination from the system ofregistration and to protect the transaction safety, it has already done its historicalcontribution fully. In modern civil law, the doctrine of Abstraktionsprinzip has lost itshistorical and legal foundation it used to have, and should quit the historical arena. After analyzing the objectivity of dingliche Rechtsgesch(a|..)ft and its relationshipwith Abstraktionsprinzip, the author presents his own opinions on the mode of passingof right in rem that, in future property law of our country, registration and deliveryshould be prescribed to be the effective factor in passing of the title. The author alsosuggests that the dingliche Rechtsgesch(a|..)ft is an objectively existing entity, though thedoctrine of Abstraktionsprinzip should not be adopted. Additionally, the doctrine ofbona fide purchaser should be applied to real property, thereby applying the principleof publicity and confidence to all kinds of title transferring and providing morecomprehensive protection to transaction.