A Research On The Principle Of Numerus Clausus

The principle of numerus clausus that can be traced back to ancient Rome, also called the doctrine of numerus clausus, has been deemed as a basic principle of jus rerum in the civil-law countries. Surprisingly, as one of the basic principles of jus rerum, it has been abided by at large while questioned continuously since its birth. Especially in recent years, with the development of society and economy, the rationality of the principle of numerus clausus has got to be challenged and many new theories come into being.Why is it that the principle of numerus clausus has aroused so much debate and so wide attention? Isn't it necessary that the principle of numerus clausus exists in modern society as some scholars say? So the author intends to make clear its original appearance by careful research. The paper starts with the origin and shape of the principle of numerus clausus, probes into its connotation and value, makes an analysis of those criticisms, and arrives at a conclusion in the end. The whole paper consists of three parts: preface, body, and conclusion. And the body can be divided into three chapters, as follows.Chapter one mainly deals with the history of the principle of numerus clausus. In this part, the history of numerus clausus is traced back to from the ancient Roman law to the legislation of the countries of the civil law system, with the common-law countries investigated, to provide a basis for understanding the essence of the principle. The thought of numerus clausus has existed in the ancient Roman law, and the principle of numerus clausus is proclaimed in writing in such countries and districts as Japan, Australia, Holland, South Korea, and China Taiwan. Although not proclaimed in writing in French and Germany, it is regarded as being effective in explanation. In the process of enaction of China's real property law, a heat debate is held on whether to establish this principle or not. Ultimately the real property law adopted on Mar. 16, 2007 still established it.Chapter two discusses the theoretical basis of the principle of numerus clausus. Herein, the author first demonstrates the theoretical premises of the principle, including the origin and characteristics of jus in re and the formation of the dual system of jus in re and creditor's right, and then probes into the connotation of the principle and the consequences undertaken when violating it, and makes an analysis of value of the principle.Chapter three focuses mainly on analysis of those criticisms. At first, the author studies the animadversion of the principle, and then makes a sum up and analysis of reconstructing schemes put forward by scholars, and eventually came to his own conclusion that it is not wise to erase positive effects of the principle and over throw the principle, proved to be reasonable and useful, only basing on some of its deficiencies because nothing can be perfect. In other words, the defects cannot obscure the virtues.