Study On Numerus Clausus Principle

So-called numerus clausus principle, also called anise, refers to the right type (or type) and content can by law provides that it is prohibited to create the freedom. In March 2007, our country by the laws of the People's Republic of China (hereinafter referred to as the law), this article 5: "the kind and content of the prescribed by law", and has established the numerus clausus principle.This paper, besides introduction and epilogue, is divided into three parts, the first part describes the basic meaning of the numerus clausus principle. The numerus clausus principle, originating in Roman law. The French civil code in 1804, created the first modern civil law, and adopted the numerus clausus this basic principle. But Germany the numerus clausus principle is the establishment of metaphysics and dogmatic. For the first time in the legislation of the numerus clausus principle expressly in 1898, is the Japanese civil code, this is the law of the development of civil Japan's biggest contribution. Our civil rights in Taiwan (types) than Germany and Japan's law is relatively simple. The property of the numerus clausus principle through the establishment of NPC, seven to eight review its stalk of grain, after 15 years, only in 2007, has officially through bumpy. From the countries and China Taiwan area of the numerus clausus principle and development, anise, its development since the spirals, along with all sorts of different opinions from various disputes and criticism, but the mainstream view and legislation has always adhere to the principle of anise. The connotation of the numerus clausus principle shoulds not be too big. Because, the connotation, is limited, will lead to the property law, which is too stiff of circulation and social economic development.The second part of the numerus clausus principle of advantages and disadvantages are analyzed. The necessity of the numerus clausus principle of numerus refers to the indispensable conditions, if there is no such conditions, the numerus clausus principle itself is pointless. The numerus clausus principle is the inevitable trend of history, A country's economic and political system is needed, Is determined by the property right characteristic. The numerus clausus principle at its beginning, this is a kind of product of logical extreme, is highly by logic to construct the system of law, but only if the concept with logical reasoning, explaining its strong vitality to steal, I'm afraid. In its must still exist more profound reasons, the legislation of rationality. The numerus clausus principle to ensure the ownership of the property and utilization, For property publication and lower transaction costs, To reflect the value of law. In fact, any system design is not perfect, theory may before in the real world, often exposed its pale side, with the development and progress of society changes will meet various new challenges. The numerus clausus principle has its limitations. On one hand, the numerus clausus principle in the law of "; "stiff On the other hand, the numerus clausus principle is the limit of autonomy.The third part based on three kinds of the numerus clausus principle theories on draw two categories-both thinking. Common property law that the limited admitted the right is not certainly has the effect of real, it must have the conditions, and with the aim of legislation and law system. This can not only meet the demand of social development, but also can change the numerus clausus principle and property publication system, combining to protect the interests of third party transactions, maintenance, and to maintain the unity and complete property system. But a practical problem is, if negate anise, denial of the law, the property law, because we will adopt the anise. For both basic rights, property rights or functional, must and content attributive and closely related to occupy the circulation of property, and the stability of the society is an important and positive significance. Through the legislation of the numerus clausus principle solution, not a desirable solution. Later, by the judicial operation, pragmatism, not only can largely avoid "judicial legislation" situation, but also can maximize avoid on a property right is the right of the creditor or unnecessary theoretical disputes, thus maximally realize the real intention of "sex", in order to meet the rapid development of social economy needs.