On Legalism Of Jus In Re And The Autonomy Of Private Law

The legal doctrine of the Real Right is a basic principle in the law system of the Real Right, continent law department country a peculiar system too, its importance is self-evident. But because one existed a rational one conceited only construct, in civil law system for a long time, a kind of inclination thought naturally in absolute terms after causing the legal doctrine of the real right, basic spirit of the whole private law of infringement that thus serious with more important system - -Autonomy spirit of the private law. With the constant development of the society, the new kind " real right " is being produced constantly, the inherent limitation of the legal principle of the real right attracts people's attention day by day. Even to this day, this kind of limitation has already destroyed the integrality of the real right system seriously, authoritativeness to damage law, hinder trade getting smooth, and the limitation real right legal principle what oneself can't solve. Therefore a scholar maintains that the legal doctrine of the real right is abandoned , give party sufficient freedom to found real right kind and content needed by it, think like this according with with civil law basic idea of party autonomy. I think this kind of view same overly going to extremes, only see the defect of the legal doctrine of real right, find real right deep reason that legal doctrine exist , that is to say real right legal doctrine contain reasonable spirit - -It emphasize by directness arranging of real right, last sexes absolute and can showings common. On this basis, it should be on the basis of carrying on rigorous analysis to the legal doctrine of the real right that I think , mediate the legal doctrine of the real right and contradiction of the private law autonomy spirit.The article is divided into foreword and three parts. The foreword mainly introduces legal doctrine and predicament of the real right, and its necessity existing. Part one It is the analysis on legal doctrine of the real right, from its history of emerging at first, theory origin and each continent law department country adopt real right legal legislative reason of doctrine carry on discussion defect and value present of system this among their civil law system. Probe into emphatically because traditional the people law circles come from ancient Rome to setting against two points of partialities of France, thus produce emphasize real right to be antagonistic to creditor's rights overly, real right legal doctrineinclination that think in absolute terms. Secondly, the economical rationality existing to the legal doctrine of the real right by economic analysis method is deduced, liberalism philosophy of gram analyze to the legal doctrine of real right thought in absolute terms with Kazakhstan then, make the scrupulous criticism.Part two is the analysis to that the legal doctrine of the real right conflicts with the autonomy spirit of the private law. It is not a spontaneous and spontaneous result of citizen's society because of the legal doctrine of the real right, but the scholar constructs in order to reach the perfect system, through the principle that reasoning from logic establishes, therefore it must be with requiring flexible and vivid private law autonomy spirit to have various conflicts . Among them the author has put emphasis on in the civil law legislates emphatically at first, because the image of the civil subject in legislator's mind - -Difference of " people " of civil law too, lead law give difference of space of party autonomy their. Also probed into the legal result that conflicts with the autonomy of private law of the real right at the same time .Part three Mainly attempt to the legal efforts that mediate with the autonomy spirit of the private law of real right. The author thinks in order to prevent the natural inclination of thinking of the real right in absolute terms that exists of legal doctrine at first, must limit it . And the best route of this kind of restriction is to adhere to the autonomy spirit of the private law. Secondly, the right system of the battle expresses one's own will to realize party autonomy in a manner to establish battle right for parties because of its strong flexibility , if can better. In addition, there is suitable help in mediating legal doctrine and party autonomy of the real right to improve the resignation system.