On Petition Right On Property

Petition right on property is a unique system of property right protection in Continental law system, which is not established in China civil law. No relief, no right. Petition right on property entrusts means of self-relief to holder of the right on property, which can provide valuable assistance in upholding integrity of property right, improving efficiency of property right protection and manifesting effect of rights over things.The claim of real right has been studied by the scholars throughout the world, especially in the countries of the continental law system .The scholars all involve the petition right on property when they study the effect or protection of property right, but their levels are quite different. Relatively, the study of German scholars on the petition right on property reaches a very high degree which is reflected in the German Civil Law. It has exerted a very important influence on the civil law of the other countries. On the base of analyzing these basic rules the author provides some reasonable proposals to our own legislation and judicial practice of petition right on property.This thesis consists of four parts.Part One,T he making of petition right on property. It is proclaimed that the history of the petition right on property can be divided roughly into three stages. It originated from action real in Roman law, and developed in Continental France. Ultimately, it was established in German law. From the development of it, we can draw the conclusion that petition right on property has changed from right of action to right in substance. Besides, comparing the rules of petition right on property in the civil law tradition countries, the author explores both the merits and drawbacks of them.Part two, the anylsis of the character of. petition right on property. Firstly, the author analyse and comment on three popular opinions. Then, the author further indicates the peculiarity of petition right on property through making a comparison between petition right on property, returning petition right on the basis of unjust enrichment and damages petition right in respect of tort. In this part, a conclusion is reached that in the remedy system concerning property right, each kind of petition right exercises functions within their own scope and is indispensable, however, petition right on property is in a core position.Part three discusses the extinctive prescription problem concerning the petition right on property .Based on the comment about different viewpoints concerning this issue, the part expounds that petition right on property should be applied to extractive prescription system through the discussion from the purpose of extinctive prescription, the suitable objects of extinctive prescription and the essence of petition right on property. It also put the viewpoint that the petition right on property for returning registered property should not be applied to extractive prescription.Part four turns to make a concise analysis and comment of the " Property right protection" system specialized in "Property Right Law" . It is argued that the independent petition right on property is necessary for the Mainland of China to protect the interest of holder of the right on property.