Study On The Predicament And Outlet Of Property Rights And Claims For Binary System

Since the promulgation of German Civil Code in the 19th century, countries of civil law system have formed a binary civil law property right system of real right and creditor's right. However, diverse transaction forms emerge due to active market economy after people enter modern society, and social relationship between people becomes increasingly complex. It is in this context that plenty of new things and phenomena emerge as the times require, such as transformation of real right into creditor's right, creditor's right into real right, the system of the third party infringing creditor's rights and new property right. Such new things and phenomena can hardly be explained by traditional property right theory and thus the binary system is unprecedentedly challenged and struck. This paper, based on these challenges, explores to figure out an resolution to this problem which requires a clear sort-out of the problem since history review is universally considered as the most effective way to locate problem. Therefore, this paper, first and foremost, explores the history of the formation of the binary system, explains some important theories of the distinction between real right and creditor's right, and points out the value and significance of such distinction; furthermore, analyses and reflects upon the challenges confronted by the binary system one by one; finally puts forward writer's suggestions: an open property right system which takes the real right and creditor's right as the core but can be accessible to other types of property right by mean of introducing a superordinate concept of "Civil Property Right" based on preserving the distinction of real right and creditor's right. Key Words:property right; binary system; real right; creditor's right; new right form...