Things Of The Civil Law

This article is from historical evolution of the concept and scope of things on civil law and through the the analysis, in different periods, different countries ,on the scope of things on civil law, it gets to the summary of things'concept and scope and analyzes that two legal traditions have broad things generalized trend . And at present ,including China, in all the civil law tradition countries there are conflicts and dilemmas on the concept of things of civil law. The auther thinks it will be better to have some amendments on the concept of things, and include generalized things in the future Civil Code. Then it analyzes the model of code of generalized things and specific definition. Above this it provides proposals of its own.In this article, there are the introduction, three chapters and a conclusion totally five parts. The contents of each part are as follows:Introduction : 1, The perspective this paper cut into and the proof thread. 2, the scope of things.It simply comparatively analyzes the differences of definition to things in "property rights" and "Civil Code" (draft) and five real experts'proposal .3, The differences between civil law and other laws This article analyzes several similar concepts to find out the same and differences and get to know the theoretical and practical signification of doing the distinction.Chapter I : The historical evolution and comparative analysis It divided into two historical periods.First, it introduces the evolution of things of civil law mainly analyzes the concept of things on Roman law and gets to the conclusion that by the analyzes on the historical evolution and the character of the concept of things on Roman law. We can get the summary as follows: First, the concept of things come naturally. But to late Roman law, it has experienced the transformation by jurists and legislators, making "man's rationality" infiltrate into this "natural" notion. Second, in Roman law, the concept is not static but always in the evolution of dynamic changes. Third, things in Roman law contains intangible things this important area ,which is a reflection of the advanced nature of Roman law, and is the achievements of the combination of Roman law's theory and practice's wisdom . The concept of tangible things itself in Roman law was in change, and it is an open concept. Then the article analyzes things'concept in Germanic law, and compares it with the concept in Roman law. Finally it can be summarized that: First of all, the concept of things in Germanic law like it in Roman law, they are open and eventually include the concept of "no-body." Second, things in Germanic law followed the path of pragmatism, which had not been abstract by jurists or legislators, "things" spare in all kinds of specific objects. After analyzing ancient civil law , the writer analyzes the evolution of the concept of things in recent modern civil law traditions. It expounds the connotation and denotation of things of civil law in different countries and regions, including France, Japan, Russia, Taiwan, China, Vietnam, Switzerland, Mongolia, the Netherlands and other countries and regions. It can be summarized that the concept of things of Civil law countries basically continues the tradition of Roman law, but it is in a higher degree of accuracy and stipulates the concept by sub-levels, such as Germany, Japan, the Netherlands and other countries have specific "property rights" aimed at "precursors" Tangible things and have "intellectual Law" aimed at "no-body" etc. Corresponding it , the theory is more mature, such as France's "generalized property" theory, the German "property right" theory, which provided a good foundation for the coordinated development of the property law system . Later, the emergence of the new Dutch Civil Code can be seen as an important adjustment and breakthrough to traditional system of property rightsPart3 The historical evolution of things'concept in common law countries. This part analyzes the origin , the status quo and development trend of the concept of things in common law traditions. From this it finds four trends of things of contemporary civil law, that are the value, the abstraction, the securitization, non-materializing ifferent lies。At last summarizes it , the common law traditions from Germanic law and the civil law traditions from Roman law are largely different in the system and idea of property rights. But They have common ground in objects of property right, that objects trends to broad its scope. The only difference lies in the civil law follows the tradition of rationalism, and thinner property right rules based on Tangible things, while the Common Law followes its tradition of empiricism, which did not intend to distinguish Tangible things from Tangible things - and have no separate legislative, nor by the technical means of law to use property rules of Tangible things "for potential" or "analogy to Tangible things,but it is very natural to treat Tangible things the same as Tangible things.Generally speaking, the system of property rights of two legal traditions derive from different traditions, experience different historical evolution , but have totally passed the same development path , that is from broad things(simplified pattern)to Narrow things(abstract pattern), then to broad things (complex abstract pattern). And their trend are basically the same. That developing process and trend are challenging to our total property systems , at the same time ,providing new thinking material for us to think about the nature of property rights and its objects deeply.Charpter Two: The concept of things and its theoretical difficulties in China's civil law. Firstly , the article points out that there are many conflicts between concept of things and the basic theories of property laws, which lead to theoretical difficulties in the concept of things. And then it analyzes the stipulation of the concept of things and its conflicts in current law, pointing put that in our current law , the use of"property"equal to"things"is very confused. Its use in different conditions for one thing , breaks the scope of"Tangible things". in fact. For another thing, it makes the connotation of property too vague, which leads many difficulties in applying the law. Being faced to judicial practice, Interpretation of the law that are compoused like spider webs have to be made., which causes legal systems to be more complex and compoused. The reason why there are so many drawbacks is that we have not done a deep study on the concept of things and property , and use property this less strict concept instead of things.Then from four cases, the article does some analysis on the theoretical difficulties in the concept of things and gives some solution that treat broad things as all the objects of civil property rights. At the same time , we should keep it as an open system that can admit any new kind of objects in at any time.Charpter Three It's the core of this article ---- the concept of broad things and its code. Firstly , is analyzes the connotation of the concept of broad things with pointing put four features of broad things. Part 2 combing to present situation drafting civil code, analyzes the open features of the denotation of broad things, and comes to a conclusion that making broad things maintain an open attitude would provide conceptual basis and theoretical foundation for drafting an open civil code. The third part divides broad things into Tangible things and Intangible things, and treats Intangible things in two different levels. The forth part analyzes the scope of broad things's denotation , including Intangible things(rights), Virtual net property (rights), securitization rights, organs from the human body, cloned products, gene and gene information, animals, banned circulation, restricted circulation-and not quantity things, etc. The fifth part makes an exposition on the concept of broad things and its code -- advocates to build a complete open system of property law . First analyzes the status of concept of broad things in the future Civil Code. Then compares and analyzes the current legislation model of property law and generalized objects around with the concept of generalized objects and the Civil Code's drafting, enacted two legislative models of property rights. After analyzing, choose a best mode of legislation. At last , on the base of comparing and analyzing the specific definition on broad things,it makes a well-deserved definition.