Comment On Numerus Clausus

The Numerus Clausus Principle means that the types and the contents of Sachenrecht should be provided only by laws. They should not be invented by agreements. This principle has been widely recognized by and applied in most civil law countries and regions since it came into being. Moreover, this principle is always being treated as one of the basic principles of Sachenrecht.However, with time flies, the Numerus Clausus Principle goes out of date to some degree, i.e. the types and the contents of Sachenrecht provided only by laws fail to meet all needs of society. The reasons are as following: on the one hand, as for laws, every law has loopholes, remains steady and fails to respond to new needs arisen in time because of the limitation of knowledge and imperfection of legislation skills. As a law, Sachenrecht law unavoidably has loopholes. On the other hand, the types and the contents of Sachenrecht are inflexible, because the rules of Sachenrecht are compulsory and only laws can provide the types and the contents of Sachenrecht. Therefore, when laws malfunction, fail to cover all areas of Sachenrecht or unable to regulate Sachenrecht , when the types and contents of Sachenrecht provided by laws fail to fulfill the newly arisen needs of society, it will be hard for people to find other ways to resolve these problems.The problem, which the Numerus Clausus Principle faces, has drawn the attention of more and more scholars in the academic field. Having agreed that the Numerus Clausus Principle fails to meet all needs of society, many scholars are trying to find a good way to resolve the problem from different points and angles. Some are sure that the Numerus Clausus Principle should be abolished and advocate that there should be no limit on the types and the contents of Sachenrecht, which should be determined through agreements. They suggest that the registration systems should be improved to publicly notify the rights or the state of the property. The registration systems should be improved in the following ways: general rules on the invention of different types of Sachenrecht should be made and current rules on the types and contents of Sachenrecht provided by law should be still in effect. However, current rules will not be compulsory any more but be optional. Others believe that the Numerus Clausus Principle should be still in use and tries to find other resources of law to resolve the problem. These scholars hold different opinions about whether practice can provide the types and the contents of Sachenrecht. Still others find a compromise. They divided Sachenrecht into foundation ones and functional ones and think that the Numerus Clausus Principle should be applied to foundation Sachenrecht not functional ones.This paper holds the opinion that in civil law countries and regions the Numerus Clausus Principle, i.e. neither other resources of law nor agreements can provide the types and the contents of Sachenrecht but laws, should be still in use despite that it is used no longer as a way to prevent the feudalism from reviving. It is because that Sachenrecht is the beginning and the ending of market trade and the Numerus Clausus Principle acts as a way to protect the interests of the third party. In China, according to the Legislation Law of the People's Republic of China, if State Council is authorized, it can make regulations to provide the types and the contents of Sachenrecht. As for the needs of society which are failed to be met by laws and regulations, practice can provide the types and the contents of Sachenrecht under certain conditions to fulfill such needs. In detail, if the types and the contents of Sachenrecht provided by practice can be publicly notified, adhere to the core value and the system of Sachenrecht law, such types and contents of Sachenrecht should be recognized.Finally, this paper makes comment on the three drafts of Sachenrecht law of China.