Reflections On The Dualistic Structure Of Property Rights In Civil Law

Since German Civil Code, Civil Law countries have established the dualistic structure (real rights and creditor's rights) into their property rights system. However, the dualistic structure is now being challenged greatly from both inside and outside before many legal phenomena arising out of the inherent indistinction of nature between real and creditor's rights, such as the intertransformations between them, the acceptance of the theory of third party's infringement on creditor's rights and the emergence of new kinds of property rights. This dissertation, after analyzing and rethinking all the challenges, affirms the significant theoretical and practical values of the dualistic structure and puts forward the view that the concept of'property right'should be introduced as an upper-level concept to help create an open property law system, which is still based on real rights and creditor's rights as its foundation but more flexible in integrating other kinds of property rights.This dissertation contains three parts: preface, body and conclusion.The preface introduces the background, object, purposes and approaches of the discussions in this writing.The body part is composed of four sub-parts. The first sub-part inspects the history of formation of the dualistic property rights system in detail, and divides this process into the non-systematization stage and systematization stage. Through the inspection, the conclusion is that the irrationality of the dualistic system and its inconsistency with the real life is sowed as early as in its birth.The second and third sub-parts respectively analyze the inside and outside challenges encountered by the dualistic system ever since. The second sub-part deals with the inside challenges from three aspects: the evolvement of creditor's rights into real rights, of real rights into creditor's rights, and the theory of third party's infringement on creditor's rights. It concludes as follows: 1) the so-called evolvement of real rights into creditor's rights is an inveracious proposition; 2) the evolvement of creditor's rights into real rights, which is nevertheless true, cannot destroy the dualistic framework but can be fully justified; 3) what really makes a problem is the theory of third party's infringement on creditor's rights, which directly attacks a basic distinction between real rights and creditor's rights: the'absoluteness'or'relativity'of the legal effects of different property rights.The third sub-part probes into outside challenges and points out the limits of another vital distinction between real and creditor's rights, that is, whether a property right concerns'direct domination'or just'claims'.The fourth sub-part, based on the affirmation of maintaining the basic distinction between real and creditor's rights, argues for introducing'property rights'as an upper-level concept to help create an open property rights system, which is based on the traditional dualistic framework but also capable in integrating other kinds of property rights.The final conclusion of this dissertation is: the reconstruction and innovation of traditional property rights system will be the theme of the re-codification of Civil Law in the new century.