Right Of Real Claim

Right of real claim is an unique system of real rights protection in continental law system, which is an important part of property law. No relief, no right, right of real claim entrusts means of self-relief to holder of the right on property, which can provide valuable assistance in upholding integrity of real rights, improving efficiency of real rights protection and manifesting effects of rights over things. Right of real claim is from Germany, relatively, the study of German scholars on the right of real claim reaches a very high degree which is reflected in the German Civil Law. It has exerted a very important influence on the civil law of the other countries.This thesis consists of four chapters.Chapter one analyzes the making of right of real claim. First, this chapter defines the definition of right of real claim. Second, this chapter describes the history of the right of real claim, which is proclaimed that the history of the right of real claim can be divided roughly into three stages. It originated from action to property 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 real claim has changed from right of action to right in substance. Besides, comparing the rules of right of real claim in the civil law tradition countries, this chapter explores both the merits and drawbacks of them.Chapter two comes to the research on the nature of the right of real claim. This chapter describes the different theories about the right of real claim, in order to analyze the nature of right of real claim ,this chapter believes that we must know the differences between the real rights and the effects of the real rights, claim of right and the credit right, right of control and petition right. The right of real claim is not an independent right, and it is different from the obligatory right. In deed, the right of real claim is the effects of the real right, obviously, it is not the control of the real right.Chapter three analyzes the related problems about the nature of the right of real claim. One is the type of the right of real claim, the confirmation of right of real claim is magistrate right, not the claim of right. The right to request restitution is one of the claims of obligatory right. The chapter discusses the extinctive prescription problem from the aspect of protection of the specific people's reliable interests, so the extinctive prescription is not applied to the right of requesting the return of the real estate which has been registered. That's to say, the right to rule out the danger and possibility of danger. The extinctive prescription is applied to the other right of real claim.Chapter four defines the range of the right of real claim. According to the real rights law and the nature of the other real rights, right of real claim should also be applied to these rights. When they carry out the right of real claim, the rights may cause conflicts because of the nature of the real rights. So we should deal with the conflicts from the aspect of protection of the real rights.