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Studies On The Protection Mode Of Right In Rem

Posted on:2009-05-10Degree:MasterType:Thesis
Country:ChinaCandidate:X W WuFull Text:PDF
GTID:2166360245996238Subject:Civil and Commercial Law
Abstract/Summary:PDF Full Text Request
As to the mode of protection of right in rem in our country ,it can be divided into two categories—the protection of right in rem and the protection of right in in real rights law and he protection of right in rem in the creditor's rights law. But the General provisions of the Civil Law instituted a different mode of peotection of right in rem , that is to substitute .the plead for torts for the plead for right in rem. This article contents 4 parts:In part 1,I have summarized the mode of protection of right in rem .As to the different types of law, we can divide the protection of right in rem into two kinds : protection in public law and protection in private law . As to the private protection, we can divide it into three kinds : self-pleading , self-defense and self-helping , which is very meaningful to the protection of right in rem . In history , the protection of right in rem has evolved from independent plead to systematic pleading. No matter how the history evolved, most countries has concentrated on two aspects : the full condition of right in rem based on the existence of object, remedy the damages in right in rem with the trespasser to blame.Part 2 deals with the protection of right in rem in real rights law . The protection in the real right law contents two kind : confirmation of right in rem and plead of right in rem . The former is the primary way . With the uncertain rights in rem , the confirmation is the necessary step as to the protection of rights in rem . Only with those who has the certain right in rem can we protect them . The plead of right in rem is the basic means to protect right in rem . which evolved from the basic right in rem as an independent right . statute of limitations is not applicable here . It is prior to creditor's rights under certain conditions , which has its sole meaning to the protection ofright in rem.Part 3 is concerned about the protection of right in rem in the creditor's rights law . the protection of right in rem in the creditor's rights law contents two kind : plead for damages and return the illegal profit .If the fulfillment of right in rem has not come back , or it is not necessary to compensate for the damages, the plead for damages should play the role of final protection . Recover the original condition is a special way . The plead of the return the illegal profit is also an important way , which the right holder can choose if the ways mentioned above are competing with each other Part 4 contents the legislative choices on the modes of protection of right in rem . After talking about some modes as to the protection of right in rem , we can see that the limitation of competing is the best mode ever . But in the real rights law , we can find the trend of liability for tort to protect right in rem ., the plead of rights in rem is neglected . As to the Civil Code to be made , the plead of right in rem should be defined clearly , and it is the same with the relationship between plead for damages and plead of right in rem , so the limitation of competing mode can be set up .
Keywords/Search Tags:confirmation of right in rem, plead of right in rem, liability for tort, plead for the return of illegal profit, limitation of competing
PDF Full Text Request
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