Analysis And The Legislation Consummates Of Real Contract

The classification of Real contract and Consensual contract origins from the ancient Roman. Along with the development of society, the status of contract has gradually changed from the form to the substantive. At the same time, the form of contract experiences transformation from the substantive function to the form function. Real contract is a special type of contracts, the process of its evolution process has obvious characteristic. Influenced by the idea of modern Contract law, the meaning of modern Real contract has great different to the meaning in the traditional civil law. If we insisted on the tradition discrimination standard of contract, that is say, giving the object is necessary that Real contract's establishment. This is conflict with the idea of the modern society's contract. And this may bring the confusion in the judicial practice. This article analyzes Kind contract in the ancient Roman first, then studies the legislation of Real contract in modern Civil Law. After that, the article attempt to analyze Real contract bears historical mission in our country and put forward the proposal to legislation consummation under the idea of modern contract.The full text divides the introduction, the main body and the conclusion.Introduction: This part briefly summarizes the study goal of this article. Then the author introduces present situation of Real contract's research and the significance of research. The article proves that giving the object is necessary to the effectiveness of contract with the historical analysis and the comparative analysis.The main body has four parties. Now starting it as follows:Part one: defining Real contract. This part analyzes Real contract from various aspects. And the part elaborates the essential characteristic that is different to Consensual contract. According to the different standard, the contract may have so many different classified ways. Whether giving the object is necessary to establishment of contract, which is the standard to distinguish Real contract and Consensual contract in Civil Law in our country. Consensual contract is ordinary form of contract. When the parties express identical meaning, the contract then establishes. Although the parties make identical expression, Real contract still need give the object. Real contract is special form of contract. The typical Real contracts include the contract of passenger transportation, the storage contract, the contract of folk loan etc. Real contract is connect with Consensual contract, also they distinguish each other. They are different in the element establishment, the element of effective, as well as bearing the risk responsibility.Part two: the origin and the development of Real contract. This part reviews Real contract from produce to evolution. The author analyzes the herit and development of Real contract in modern countries. When the contract starts to walk from the form just to the essence just, the form of contract also starts the essence function to the form function. This part attempts to analyze and study vertical aspect and horizontal aspect of Real contract. Thus we deepen the research of Real contract in our country, and provide suggestion for legislation consummation about Real contract.Part three: theoretical analysis on Real contract in our country. The law is a dynamic developing process. How this process develop, which is decided to the economic basis. Hydantoin pointed out that the important characteristic in private law is individual autonomous or the right of its self- development. Since 20th century, because of the influence by the monopolized economic, absolute freedom of contract gradually is controlled. The present economic system in our country is socialist market economy, which is the open economy. So our system of law should keep the step with the world, and the market economy. This part introduces the present theoretical situation about Real contract in our country, analyzes the reason that the traditional theory of Real contract is not harmonious with the social reality. Then the author elaborates Real contract should bear historical mission in the present stage. Finally the author analyzes the rationality of giving the object which is as the element of effective of Real contract.Part four: the present legislation situation and consummation of Real contract in our country. This part analyzes the present legislation situation of Real contract. The goal of that is consummates the flaw in Contract Law about Real contract. Based on judgement and analysis of Real contract, the author unions society reality, redesigns the related regulation in Contract Law. Make giving the object as the element of effective, which should be the unification standard to classify contract. So this is not only advantageous to solve the problem in the theory and the legislation about Real contract, but also draws close to the life, is easyto be suitable.Postcript: summarizing the gist, paper is over.