Discussion On System Of The Right Of Real Claim

Right of the real claim has been a unique and essential legal system of real right protection in Continental law system. Most continental countries have established the legislated system of the real claim right in their recent histories, but the most typical civil law code in the world all had different legal rules. Although there is no civil code or real rights law in China, nor uniform system of the real claim right established, there are really many theoretical discussions on this topic. The Real Right Law passed by the fifth session of the tenth National People's Representative Congress on March 16, 2007 explicitly stipulates the right of real claim in the form of law, and the basic framework of real claim right theory in our country has been established hereby. It has significant importance to the establishment and perfection of the legal regime of real claim right in our country. This paper is to analyze the real claim right deeply from the following aspects, put forward the author's understanding to the system and legislation mode of real claim right and to give a few comments on the system of real claim right under the PRC Real Right Law.Part One: the source of the real claim right system. This part mainly discusses the historical development of real claim right system: 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 right of the real claim has changed from right of action to right in substance, and its protection has changed from relief by public force to relief by self. Besides, comparing the rules of right of the real claim in the civil law tradition countries, the author explores differences among them.Part Two: basic theories of right of the real claim. Firstly, the author explains the name of right of real claim and its difference with the right on the real property, and concludes that the expression of "right of the real claim" is more adoptable. Secondly, the author explores the character of right of real claim. By comparing different theories, the author comes to the view that the character of real claim right must be a secondary right originating from the effect of real right, other than a right of credit or an independent claim. Thirdly, the author analyzes the types of real claim right, denies the claim of confirming real right and confirms the claim of restoration as a type of real claim right, and further, summarizes different rules into four categories: claim for restitution, claim for removal of obstacles, claim for preventing the harm to ownership and claim of restoration. In addition, extinctive prescription does not apply to right of real claim. Lastly, the relationship between claim of real right and other types of claim is addressed.Part Three: right of real claim based on ownership. This part analyzes the respective component parts and content of legal force of claim for restitution, claim for removal of obstacles and claim for preventing the harm to ownership. Meanwhile, the author focuses on the following questions: Firstly, when the property is under the possession of another person, the subject of real claim right shall be treated differently according to the different wills of direct possessors. Second, the content of obstacle/harm shall be with three elements of continuance, directness and illegalness. Third, the paper is of the view that the obligor of removing illegal constructions shall be the current possessor of illegal constructions under the principle of "the person who has the factual disposing right shall be responsible". Fourth, the cost share for the exercise of right of real claim. There are different opinions in the theoretical circle. The main theories are responsibility of counterpart, responsibility by fault, joint burden and differentiated burden. This article is in favor of the differentiated burden, which means the cost shall be born by the default party if only one party has fault; the cost shall be born by the party actually controlling the obstacles when no party has fault.Part Four, right of real claim based on real right on other's property. The author firstly confirms the application of real claim right to real right on other's property, and demonstrates it from the perspectives of equal real right and effect of real right. Second, the real claim right on various real rights on other's property is discussed in detail, especially, on the usufructuary right and security right. When discussing the real claim right on easement, the author points out that such real claim right shall not include the claim for restitution. Similarly, the real claim right based on mortgage shall not include the claim for restitution either. The opinions on standard for the obstacle of mortgage are disputable in the circle. This paper is of the standard that "the value of mortgaged property will or may reduce because of the obstacles". When discussing the real claim right based on pledge, the author holds that the real claim right shall also be applicable to the pledge of right just like its application to the pledge of movable property. Because the pledge of right is a value right by nature, and may be infringed by others. In the end, the author summarizes that when the real claim rights based on ownership and based on real right on other's property existed at the time on the same property may be parallel or conflicted with each other.Part Five, legislative mode and comments of right of real claim. The author gives a concise investigation on the legislation of right of real claim in Continental law countries, among which, the French Civil Code and Germany Civil Code is the most typical ones, and points out the places in the legislation in Taiwan worth to be learned. Then this paper briefs the current situation of real claim right legislation in our country. For a long time we haven't established an independent real claim right system and the General Principles of Civil Law stipulate it within the civil liability manners of infringement. The defect of such practice is that the three concepts of right, obligation and liability are mixed up, and is harmful to protect the interest of real right owner and the judicial practice. It is very meaningful that the newly formulated Real Right Law explicitly stipulates the right of real claim in the form of law for the first time. However, certain flaws still exist, such as not in compliance with the strictness of legal concept. The content of its protection of real right is just a part of the civil protection of real right, and thus the actual content of protection of real right is inconsistent with those it should cover, and the principle of strict concepts is failed to be followed. For this, the author also brings up some advice to the legislation.