On The Claim Of Real Right

Claim of real right is unique to the civil law system. It provides the most direct and effective protection. However, claim of real right is a general concept rather than a legislative term. It is the result which scholars have drawn from every concrete form of claim of real rights in the Civil Code. As the important means of real right protection, claim of real right is the inevitable issue when every country makes real right law.The motive of this paper comes from the interest in right protection system of civil law and the focus on claim of real right system in real right law. Thus this research aims to explore the claim of real right from many aspects to grasp the development of the claim of real right. The methodology involves historical and logical methods, the methods of value analysis and comparing analysis, the experimental methods and so on. Meanwhile it not only aims to find out the reason to the disputation about it and to examine the legislative characteristics of every country but also aims to provide data and proof for the establishment and improvement of claim of real right in our country.This paper primarily contains seven parts.First, the introduction is about the background, importance, purpose, methods as well as the brief instruction. It is meaningful for our country to explore the claim of real right.Chapter one is about the literature review. Claim of real right system is the product of social economic development. It is the inevitable outcome of historic development. It generally experiences three stages: origin, establishment and development. Although the time of establishment and features are different, every country which belongs to the Civil Law system established the system of the claim of real right.Chapter two sets forth the theory. It points out that properly grasping the feature of claim of real rights is very important, which relates to the status and the legislative position. In addition, it examines the definition, feature, pattern, character and effectiveness of claim of real rights.Chapter three is the function analysis. Claim of real rights is the ample relief to the arrangement of real rights. This chapter distinguishes the different effect of the claim of real rights and every kind of creditor's rights towards the protection of real rights. At the end of the chapter, it also expounds the superiority and the value of independent existence of claim of real rights.Chapter four is the analysis of legal provision. It explores the legislation content, legislation pattern and legislative characteristic of claim of real rights. Through comparing the claim of real rights in Civil Law and the protection pattern towards property in Common Law, it turns out that the legislation of various countries has shortages and advantages. This comparison is significant to the establishment of claim of real rights in China.Chapter five is the evaluation of the law. The paper makes the rational analysis towards the claim of real right in China. First, it comments on General Principles of Civil Law of People's Republic of China. And inspects the limitation of relative legislation of claim of real rights; secondly, it searches for the regularities. This paper pointed out the necessities of the establishment of claim of real rights in our country. Then to make clear that claim of real rights in China should draw lessons from both Civil Law and Common Law, meanwhile should make some innovation; thirdly it discusses the legislative characteristics and shortages of PRC Real Right Law. Due to the strong sense of principle, it brings certain confusion and difficulties to suitableness for judicature. Hence, it is very important to make some judicial explanation. In this part, the paper also mentions some suggestions to improve the legislation.Finally the paper makes the conclusion. The claim of real right is the product of social economy development and of the flouring law. It is universally accepted by every country in Civil Law system and is worthy for our country to use for reference. The claim of real right is the relief independent claim which based on the real right, it provides the most direct and powerful relief for the real right. Because of its superiority, the system of claim of real right cannot be replaced by the system of infringement. There are differences between the system of claim of right in Civil Law and the system of property protection in Common Law. The model of legislation depends on different legislation environment. The claim of real right system built by our country is innovative in legislation model and technology. However, there are still some shortages in certain parts, which need to make further improvement.