On Legalism Of Jus In Re

Among the many principles of Real Rights, legalism of Jus in Re is themost remarkable, and is treated as one of the most basic principles of RealRights. But its stiffness follows it from the very beginning, especially aftercapitalism gains much development. As society develops quicker, it requiresour law be adapted to the society. So legalism of Jus in Re is in a dilemma.This thesis tries to rebuilt legalism of Jus in Re from a new view.This thesis is consisted of three parts.The first part makes a summary about the origin, contents and necessityof Legalism of Jus in Re. The thoughts of legalism of Jus in Re has existedsince ancient Roman Law, now many civil law countries has established it intheir civil law, such as Japan, Austria, Korea. According to the learning field ofour country, legalism of Jus in Re requires that the categories, contents, publicsummons and validity should be legalized. It refuses freedom to establish realright, or else, it can't be treated as real right. Besides, this part gives a simpleanalysis about why legalism of Jus in Re can become the most importantprinciple in most civil law countries.The second part makes some analysis about the relations betweenlegalism of Jus in Re and principle of autonomy of will. Firstly, autonomy ofparty is the nature of principle of autonomy of will. But legalism of Jus in Rejust limits autonomy of will. We must admit the fact that there is justificationfor this limitation. But in nowadays with the expansion of real right, everycountry creates many new categories of real right by custom and judicialdocuments, and traditional categories of real right have new contents. Thosephenomena violate legalism of Jus in Re. In order to overcome the stiffness ofLegalism of Jus in Re, theorists, legislative branch and judicial branch all takeactions to acknowledge new categories of real right. Of course, this methodcan't solve the problem completely, but it urges us to treat Legalism of Jus inRe objectively, and think over about the value and limitation of the principle. Secondly, legalism of Jus in Re guarantees principle of autonomy of will.In fact, as the base of civil law, principle of autonomy of will exists not only inContract Law, but also in Real Rights. And legalism of Jus in Re ensuresautonomy of party. In a word, the limitation aims at guaranteeing autonomy ofparty. The third part discusses about the necessity of establishing legalism ofJus in Re in Real Rights, and how to put it in practice in our legislation of RealRights. At present, more and more attention is paid to legislation of RealRights. Whether we should insist on legalism of Jus in Re or not is animportant problem. It is important not only to classification of real right, butalso to the system of Real Rights. Our Property Law has gained great progresssince reform, but our Property Law is characteristic of indefiniteness and lossof exact legal provisions, so we must devote to legislation of Real Rights. Wemust design real right as specific as we can, and make definite mandatoryprovision on those real right's contents. Of course, it doesn't mean that weshould regulate all probable real rights, this part just tries to establish real rightsystem of our country. At the same time, we ought to realize legalism of Jus in Re is differentfrom conservation of Jus in Re. With the development of society andtechnology, transfer of property becomes more and more flexible. Under suchconditions, if we stick to legalism of Jus in Re unchangeably, our law will be...