Study On The Right Of Claim For Dividing Co-ownership

The right of claim for dividing co-ownership refers to the right that the co-owners have to dissolve the co-ownership of the co-owned property. As one of the important contents of the co-ownership, the right of claim for dividing co-ownership plays an important role of solving disputes between the co-owners, and promoting the use of co-owned property efficiently. Almost every country or region has covered the right, and specified it on the nature, the conditions and limitation of exercising. In section 99 of Chinese Property Law is on the right. Nevertheless, compared to the laws of other countries or districts, our country only specified the rules, which is hard to operate on the practice. Therefore, it's necessary to learn the legislations from other countries or regions to perfect our system of the right of claim for dividing the co-ownership. At this point, studying on the right is not only advantageous to protect the co-owners'legal rights, make good use of the property, but also to perfect our co-ownership and provide theory basis for judicatory.According to related theories about property law, this thesis researches in detail the nature, excising method of the right and the consequence of excising the right, etc, wishing to give some suggestion for perfecting our Real Law.Besides the chapters of preface and conclusion, the thesis consists of other four chapters.In chapter 1, the right of claim for dividing co-ownership is generally described. Firstly, the concept of the right is defined and its nature is analyzed, which belongs to the right of claim doctrine of property right. Therefore, the thesis is prepared well for the following illustrations. Secondly, the theoretic basis of the right ---the obvious inward share of the co-ownership by share and the potential inward share of the joint co-ownership are discoursed upon in detail, and the value of the right is illustrated. At last, the right respectively in Roman law and Germanic Law are generally investigated. The thesis believes that the Roman law has the significant impact on the right of claim for dividing co-ownership in the Continent Law. In modern society, the right is developing tremendously; almost all the countries of the Continent Law have their own law system on the right. In Common Law, the people do less emphasis on the attribution of the ownership, so that the development of the right is not perfect. Thus the thesis makes a prediction on the trend of the right, which is the right in the two Laws is gradually integrating.In chapter 2, issues of exercising the right are discussed. Based on discussing the principles of exercising the right, the thesis believes that exercising the right is limited by the purpose of using the property, prohibiting dividing agreement, the contract on the charge of the co-ownership, etc. The thesis insists that the right is not limited by the time for action. At last, thesis analyzes the special conditions of exercising the right. That is, the co-owners are able to exercise the right on part co-owned property, exercise more than two rights of the claim at the same time,even part co-owners who have the same co-owned properties and other co-owners who have other co-owned properties can exercise the right together, only if more than one the co-owners have all the co-owned properties.In chapter 3, the legal consequence of exercising the right is discussed. The direct consequence is that the co-owners agree to the dividing agreement or divide the co-owned property by litigation.Exercising the right results in the change of the owners and the civil responsibility of the former co-owners. The change of the owners means that the new co-ownership is formed or only one owner owns the property. The first civil responsibility that the co-owner should take is the responsibility of guaranty flaw, including the guaranty right-related flaw and property-related flaw. The co-owner should guarantee that nobody will claim to any right on the property that the other co-owners have, and that the property is no flaw before dividing.The second civil responsibility is the liability of compensation for the loss, which means that the co-owners has the right to get compensations on the loss of exercising the right of claim. Generally speaking, the exercising the right of claim have not influenced other right, such as the real right for security and the usufructuary right. However, if the co-owners put the real right for security on his inward share, the person who has the real right for security has the right to agrees to turn it to the share that the co-owner has after dividing the co-ownership.In chapter 4, the thesis illustrates the defects and gives some method on how to improve the right of claim. Now our country has the system abut the right of claim for dividing the co-ownership, and we can find the rules about no-dividing agreement, the responsibility of guaranty flaw, the right of asking for compensation, etc. Nevertheless, our law has more freedom and little limit on the right, and the articles are simple, so they are not comfortable to practice. Moreover, some systems are not regulated. In order to play the value of the property, balance the equity and efficiency and ensure the party autonomy, the thesis gives some advice on perfecting the system of the right of claim for dividing co-ownership. The first advice is on exercising the right.The law should give certain restriction on the no-dividing agreement, define the meaning of the "important reason" and the loss of the base for the co-ownership, and refine the cases of exercising the right. The second is on the consequence of exercising the right.The thesis believes that the law should give accurate time when the dividing come into legal effect, and define the condition that the co-owners exercise the right of asking for guaranty flaw. We should add the impact of exercising the right of claim on the real right for security and the usufructuary right,.in the thesis agrees to change the liability of damage into the liability of compensation for the loss.