Examination On The Nature Of Creditor's Right And Real Right

One of the difficulties in present legislation of civil code is how to transplant and reform property law. The points at issue include the nature of claim of real right, the relationship between real right and intellectual property, the dividing line between creditor's right and real right as well as the preservation or abolition of them. Almost all these controversies are based on the theoretical premise that "Creditor's right is right of claim while real right is right of control" and are only concerned with the partial while neglecting the whole. We should straightforwardly examine this specious "jus proverb" , cast light on the relevant concepts such as creditor's right, right of claim, debt, liability, natural debt, remedial right, real right, right of control, possession and start with historical science of law and conceptual analysis to revise the theory of the nature of creditor's right and real right, so as to lay a foundation for the settlement of the controversies mentioned above.This paper consists of five parts:The chapter 1 gives rise to the problem and defines its boundary, and the reference documents are summarized according to the time and nations;The chapter 2 summarizes the current prevalent theory concerned, observes its source and development and brings its anti-historical character into light ;Going on the premise of criticizing the equating theory and the segmentation theory of creditor's right with right of claim, chapter 3 draws lessons from the homogeny doctrine between the system and the application of Chinese philosophy and makes a conclusion that the relationship between creditor's right and right of claim as well as the relationship between real right and claim of real right are just like the relationship between the system and the application, thus reveals the unreasonableness of the saying that "creditor's right is right ofclaim" ;The chapter 4 selects the most primitive pattern of control (namely possession) as the starting point, finds the antinomy in the theory of possession and real right and displays the theoretical defect of the saying "Real right is control" as well as the entanglements between this saying and the unreasonable elements hidden in the theory of legal relationship;The chapter 5 emphasizes on the practical meaning of the foregoing positions, and then reconstructs the theory centering on the saying "creditor' s right is jus in personam and real right is jus in re" .