Study On Numerus Clausus Principle

The Numerus Clausus Principle means that the classification and content of right to property shall be available only in accordance with laws. They shall 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 has been treated as one of the basic principles of property law and stipulated in the Property Law of PRC.However, with time flies, the conservation and rigidity of the Numerus Clausus Principle have gradually emerged, which has drawn the attention of more and more scholars in the academic field. This issue has also been controverted continually during the legislative process of Property Law. Some scholars are sure that the Numerus Clausus Principle should be abolished and advocate that there should be no limit on the classification and content of property right, which should be determined through agreements. Others believe that the Numerus Clausus Principle should be still in use and try to find other methods to resolve the problem. Legislation can not end theoretical study. In a new changed situation, how to correctly understand the Numerus Clausus Principle and how to overcome the drawbacks of the principle are of the utmost importance to both theoretical exploration and judicial practice. So the study on the Numerus Clausus Principle has both theoretical value and certain social significance.Based on the definition of the Numerus Clausus Principle, layer upon layer thorough, this dissertation analyzes the reason and practical significance of this principle; makes comments on the theories of quasi-numerus clausus principle and makes deep analysis about the relations between the Numerus Clausus Principle and the Principle of Autonomy of Will. It makes a conclusion that the Numerus Clausus Principle shall be insisted unswervingly in China and judicial interpretation can be used to compromise the rigidity of this principle.Besides lead-in and conclusion, the dissertation contains three parts. Part one defines the Numerus Clausus Principle. Part two analyzes the reasons of existence and abolishment of this principle and gives countermeasures. Part three focuses on the relationship between the Numerus Clausus Principle and the Principle of Autonomy of Will.Firstly, Part one analyzes prerequisite of the Numerus Clausus Principle by distinguishing property right from obligation. Then it defines the Numerus Clausus Principle by analyzing the theories of definition and makes a conclusion that the classification and content of right to property shall be the objects of the Numerus Clausus Principle, which lays the groundwork for the following dissertation.Part two firstly comments on the performance of the Numerus Clausus Principle in the main continental law countries and other countries, and derives the value of its existence and practical significance from the review. Then it establishes the status of the Numerus Clausus Principle in our Property Law by analyzing the theories advocating the abolishment of the principle. Next, it compares some methods that compromise the Numerus Clausus Principle and analyzes the theoretical and practical problems that the customary rights of property face, with the conclusion that judicial interpretation is the more feasible option in China nowadays.Part three firstly analyzes relations between the Numerus Clausus Principle and the Principle of Autonomy of Will overall. Though the Numerus Clausus Principle limits free will of parties, it does not violet the principle of private governance but guarantee the autonomy of parties to some extent. Secondly, it points out the relationship between the Numerus Clausus Principle and the Principle of Autonomy of Will under certain circumstances by analyzing two specific situations.