Font Size: a A A

Dian Right Reserving And System Restruction

Posted on:2009-05-28Degree:MasterType:Thesis
Country:ChinaCandidate:S BaiFull Text:PDF
GTID:2166360272473550Subject:Civil and Commercial Law
Abstract/Summary:PDF Full Text Request
In the process of transplanting western laws, the system of Dian Right is the heritage of Chinese traditional trade custom. It faced the survey, comprehension and nature determining by the Civil Law, a imported law, once and once again. Its relationship with statute Civil Law has gone through a lot of change, sometimes close, sometimes distant. It separated from Civil Law which is the statute law and returned to its nature as a pure trade custom until the enacting of Chinese Real Right Law, which makes the Dian right system mysterious. What system is Dian Right system in fact is? What systematic function it takes on? What's its current situation? Is it necessary to rebuild it into the Real Right Law? If it is, how should it be improved? All these problems will be answered in the paper.The first section introduces the history and current situation of the Dian Right. Firstly, the change history of the Dian Right is researched. From Xizhou dynasty to the Republic of China era(1912-1949), from promiscuous to clear, from non-distinguishing sale, pledge and pawn to forming a independent Usufruct of immovable Property system, the Dian Right shows great vitality and ability of inclusion. Then the current situation of the Dian Right in Taiwan and in the mainland is generalized. The Dian Right is specifically ordered in the Civil Law and other laws, codes and judicial explanations in the Taiwan region of our country, however, most current scholars in Taiwan regard that the Dian Right is declining. While in the mainland, the Dian Right only exists in part of administrative regulations, departmental regulations and local regulations, and a lot of judicial explanations. It has fallen low to be a customary law. The scholars'attitudes are complicated and not consistent.The second section is a discussion on abolishing the Dian Right or not. There are four main points of those who want to abolish the Dian Right: the theoretical foundation for the Dian Right to remain is gone; it is declining; it lacks justice; its theory of law can't justify itself. All the four standpoints are disproved, and a comparison of the Right of Lease, Deal with Redimere Term, and Realty Pledge is done, which indicates the Dian Right can't be replaced by other laws. At last, the necessity for the Dian Right to exist is analyzed mainly from the aspect of systematic value, which is a supplement to the Dian Right reserving theory, realistic demand and formal rationality.The third section presents the reconstruction of the Dian Right. The section consist of seven parts which involves the subject, object and term of the Dian Right, the forming, annihilating and rebuilding of the Dian Right, and the coexistence of the Dian Right and the Mortgage. Concretely speaking, the section extends the range of the subject and the object of the Dian Right, corrects the term of the Dian Right, distinguishes Dian Right first, Mortgage next and Mortgage first, Dian Right next when the Dian Right and the Mortgage coexist, modifies the condition for the Dian Right to come into existence and for rebuilding the Dian Right, and finally explains in detail the four means to annihilate the Dian Right.The paper includes a lot of viewpoints of the author. There may be some immature in the paper. However, it aims at educing more great points, which is right the value of the paper.
Keywords/Search Tags:Dian Right Reserving Theory, Dian Right Abolishing Theory, Dian Right Substitute Theory, Dian Right Reconstruction
PDF Full Text Request
Related items