The Expansion Of The Scope Of The Object Of Real Right

The object of real right is the logical beginning of studying Real Right Law, if you want to understand the real right, you must firstly understand the "res". Article 2 of Real Right Law of the Peoples Republic of China has made the stipulation to the object of real right, but says logically, Article 2 is not the strict definition of "res". Which thing does the object of real right include, what is "res" ,what is the real estate, the movable property, whether the right can be the object of real right, whether the system of the existing real right law is reasonable and so on ,these questions still need our country scholar to do further research. The author discovered that in the numerous researching results of real right law, the research aiming at the object of real right is not to see, even if scholar who concern the object of real right conveniently, they still have different points, some firmly believed that the object of real right must have the body, some thought that to defined the object of real right in having the body is already not to be able to adapt our social's developing, can not satisfy the need of the people's production and life ,the science and technology changed so quickly, so some scholar suggest to expand the scope of the object of real right..Along with the development of the science and technology , especially the networking's development, in need to satisfy the people's produce and life, according to the network activity rule, the public resource using rule, the company legal person system and so on, certain objects are drawn up, for example network game's weaponry, QQ number, email address, IP address, telephone number, stock, bond, fund share,electronic currency......These new things, already broke through in the traditional realright theory "the thing must have the body" . The existence condition of the object of real right has surpassed its original sole physical form, presents the abstraction, the securitization, digitized, the non-inheritance of forms , "the shape" and "the body" was already not the limits the object of real right sole criterion, therefore should expand the scope of the object of real right, to integrate these new things. At present some scholar had adopted the method of defining again "res" to expand the scope of the object of real right. Moreover, this method has the convenience of suitable - - everything to conform to definition of "res" is a "res", everything does not conform to definition of "res" is not a "res". But this method is not "getting it over and done", by no means that even if can give the "res" a very precise definition, facing changing of now social and the science and technology with each new day as well as people real life complex, the definition also demonstrates showing off to the hysteresis quality, moreover are some things the "res", is not an abstract definition can solve, it needs the concrete study. And, as the object of real right the "res" is the concept which develops unceasingly, to solution the long-term accumulation's dispute on the "res" concept will be a vast project, therefore the writing goal of this article is not gave the "res" a general definition, but from other angle, carefully examines the object of real right by one kind of historical development's angle of view, uses the typological method to discuss the scope of the object of real right on the new historical stage, and does not rigidly adhere to the concept principle strict standard. In the situation which giving the "res" a precise definition is very difficult , at present in the type thought has provided the science method for the real right object's research, and pave the way for entering the new thing into the real right law.This article is divided four parts, approximately 50,000 characters.The first part "discrimination of real right object and creditor's rights object, intellectual property rights object". This part start from the right object's concept, the scope and the function to analysis comparatively the mainland legal system civil law's three big property right - - real right, the creditor's rights, intellectual property rights' object, thought that correct discrimination of the real right object, the creditor's rights object, the intellectual property rights object is the logical premise of studying the real right object. The real right object is specific, uniqueness, to be possible dominant, therefore the real right object can only be the specific thing; But the creditor's rights object is the behavior, can not dominant; Intellectual property rights' object does not have uniqueness. Real right object's specific including two aspect contents of already saves the natural and the definite, also saves the nature is the premise that the "res" has specific, determinism is the method that the "res" may be specific. The specific of the object of real right request having uniqueness.The second part "history inspection and legal analysis of the traditional real right object". This part take the historical development as an angle of view, inspected the real right object systems of several typical civil code of the mainland legal system, and also to carry on the inspection "the property" and "res incorporasles", has cleared off the relation of the property and the "res"; discovered that the classification of the "res corporales" and the "res incorporasles" is at that time still had not abstracted the right, the property rights, other real right as well as the creditor's rights concept, the early Rome jurists created the classification of the "res" which for the explanation law's convenience,and was adapted with Rome method "the person law, the "res" law, the procedural law" three point structure .The "res incorporasles" concept is the historical product, its connotation is plentiful day by day in nowadays society, and exists already as the simple achievement the pronoun of "the right". Therefore this article does not advocate followingRome's method tradition to integrate it to the scope of the real right object. Then has carried on the legal principle theory of law analysis to the mainland legal system's two big branch - - France legal system and the German legal system's stipulation, the French legal system picks the generalized understanding, and the property will confuse, even some countries will continue to use the concept of Roman law "res incorporasles" (right) directly, cause the statute book right system's logic to be chaotic, therefore this article did not advocate taking the right into the scope of the right the object; German legal system, then picks the narrow sense , defined the real right object "res corporals". The French legal system is too broad to the "res" extension's limits, the German legal system is too narrow to the "res" extension's limits, moreover faced with from theory and practice dual challenges, therefore cannot continue to use Germany's pattern again.The third part "modern development of real right object". This part first through the relations of the right and the power, cleared off relations of the real rights with other real right, thinks the traditional real right theory take the property rights as the center, but regards other real right as the property rights derives, the limited right, the deadline incomplete real right, the product which the property rights power separates ,the viewpoint is worth discussing. Then has analyzed relations between the traditional real right theory with the time , as well as the influence that the modern society economy and the science and technology development to the real right object system, thought that the trend of development of the real right object has developed from taking the material object as the standard to the material object and the value pays equal. The resources and the wealth break through the inherent sole material shape more and more, presents the tendency of the value. The people through carry on to the material object content's exchange value highly abstractly, and its securitization, draws up "the securitization thing". The science and technology progresses and changing with each new day , causes each new technology, each new product to emerge unceasingly, particularly networking development, caused people's life to have the earth-shaking change, the appearance of the network hypothesized thing caused the shape day by day broke through inherent "res corporales" category, presented does not have the inheritance of forms and the digitized tendency. These "the securitization thing" and "the digitized thing" and so on abstract and the entity equally has the use value and the exchange value, so can be entered into the scope of the real right object, receives the protection of the real laws.The fourth part "the real right object's typological", this part start from the discrimination of the typological thought and the conceptual thought, to elaborate the typological method's legal significance as well as the significance to studying the real right object specifically, thought that the construction type and using the type are more flexible than form the concept and using the concept to judge and inference , it allowed that the people confidently and explored carefully under the limited level of understanding infinite rich, and was eternally changing real world. And looked from historical development's angle of view, the real right object scope is in itself one along with the socio-economic development, but expands unceasingly the open system, its scope is expanding unceasingly, new appearance already broke through the"res" to have the character, the people are very difficult to give the "res" a accurate definition again, also carries on the classification very difficultly according to the traditional thing's type , therefore needs to draw support from the typological method. Because the typological method does not rigidly adhere to the concept strict standard, in the situation of giving the "res" a precise definition difficultly at present, has provided the science method for the real right object's research, and pave the way for new things entering the real laws .Then elaborated several important types of real right object: entity and abstract, movable property and real estate. The entity may describe to have the material entity, and by abstraction concrete, including the concrete type of visible and invisible as well as the space and so on. Abstract may describe as the people abstract thinking product, at present includes the concrete type of purely valuable which produces by person's abstract thinking "the digitized thing", "the securitization thing which" draws up through the law and so on. Moreover along with the socio-economic development and science's and technology's progress, will present in the future also new abstract the concrete type. Finally discussed discrimination standard of the real estate and the movable property specifically, this article has approved of by the physical standard primarily, auxiliary registered the standard, and has analyzed concrete type of the real estate as well as the discrimination significance.