The Consummation Of The Profit Real Right In Our Country

The real right is the operation foundation of the market economy, is premise which the social product can smoothly carry on. The real right has the extremely vital significance to society's development, but holds the extremely important status with the profit real right system in the real right legislation, and directly will be affecting our country existing and the future social economy life. Therefore, in the formulation process of the real right law, constructs its consummation with the profit real right system always is one of in particular heavy center heavy questions. Because the consummation of this system involves following two questions: one is how to break the system of land with the profit real right which is with ownership concept as the logical beginning will become a key to substitute the modern profit real right system. In this process, the private right idea obtains further indication; the other is how to break through the fetter of the tradition profit real right theory, stand in a new angle to re knew modern profit real right system. Looking over the profit real right each system in the traditional civil law, we may see from the overall to both carefully enters micro, and rigorous thorough legislation imposing manner, but its all sorts of theories and the rule all are centers on the property rights question to launch, and has fully affirmed the property multiplication and the multi-level use necessity in the legal method and the idea, provided the good environment to create more wealth for the material property for the society and play a more effective role, it has the benefit to the commodity economy. Therefore, since the Roman Law which is "the first world law of the commodity producer society" (Engels's word), the civil law of different countries has payed attention to the profit real right system to a varying extent. The Continent Law countries, such as Germany and France, stipulate concrete type of the profit real right system exhaustively, but the Common Law countries, such as England and America, do not have the system, the existing writing real right legislation, they are complex with the profit real right system, also include in the real estate (for example, life estate, is similar in the profit right of the Continent Law), also include the non- real estate right benefit. Both of the theory achievement have provided the precious wealth for thorough research of this question. The profit real right system finds itself in a condition which is the concept is not united, the content is imperfect, the system is diseased for a long time before the real right law appears. This has affected the practice of the profit real right seriously. Therefore, studying the construction of the profit real right system in our country, especially the consummation in the present stage appears important and urgent in particular. This article has done the thoroughgoing and careful research to related questions of the profit real right system using the comparative analysis and the theoretical analysis research technique.What profit real right system should be established in our country has caused wide divided opinions in the legal science. However, in the fifth conference of the tenth session of National People's Congress, "Real Right Law" which is high ticket through delimits a complete period for this dispute temporarily. "Real Right Law" which will implement in October 1, 2007 has made a more exhaustive stipulation to the profit real right system in third chapter. It has the very multiple-valued affirmation places, but also has the consummation places simultaneously. Under the premise that in the assurance with the related theory of the profit real right system and understanding its future development tendency, we must establish an entire set of the profit real right system which is consummative and scientific to guarantee that the civil main body can participate in the civic action equally and freely, protect their legitimate rights and interests. The modern profit real right system should manifest foresightedness spirit, should be a system which is independent, dynamic and opening.