Study On The Object Of Real Right

The thesis explains the legislation and theory of the object of real right of different countries in different periods, probes into and comments on main theories of the object of real right in the perspective of comparative law. Then it further analyses the focal issues of the object of real right. On the basis of the above-mentioned exposition, under weighing to every theory pros and cons, the author proposes that should regard the type of real right as the visual angle to the investigation of the object of real right, and discusses the concrete type of real right------the object of the ownership, usufruct and security rights one by one.The thesis is divided into four parts, and the main content of each part is as follows:Part one: In the first part, the thesis introduces the object of real right in the perspective of comparative law.In this part, the author proceeds from angle of epistemology and explains different intensions of the object of real right of different countries in different periods, and describes emphatically the object of real right in Rome law, France law, Germany law, Japanese law and Taiwan law of our country of Civil law system, and in Anglo-American law system.It can trace back to the Rome law initially which the res is abstracted from the everyday language, and applied in the legal meaning. The res is divided into res corporales and res incorporales in Rome law, this division has a far-reaching impact on civil law theory in later age. In terms of textual research of scholars, it is for distinguishing ownership and other rights related to the res, and meeting the legislative structure of "party, res, and lawsuit ". So the object of real right includes res corporales and res incorporales in Rome law.Civil Code of France adopts the concept of property as a result of jurists' different understanding of res and property in Rome. In France's civil law, the object of ownership is all things like that in Rome law, including the right can also become the object of ownership. Such a regulation is criticized by scholars, if it can then will cause " ownership of creditor's rights ", " ownership of the usufruct " even will present " the ownership of ownership ", that the right can become the object of ownership, in this way, will cause the concept of ownership to lose the legal meaning, and then will influence the division of rights and even setting-up of the whole civil law system.The concept of the res is different from which that in Rome law and Civil Code of France in Civil Code of Germany. The 90th regulation of this code stipulates that "the res is rest corporales in this law ". Therefore, the concept of rest incorporates has been ended in Civil Code of Germany. Civil Code of Germany limits the res as res corporales strictly, on one hand, it considers the logical contradiction appearing in France law described above, and avoids such awkward circumstances of "ownership of the right", on the other hand, it is still difficult to get rid of the influence of the law of Rome in the Germany jurist's thinking. However, in essence, the object of real right is res and rights in the Civil Code of German.As Civil Code of German, the article 85 of the Civil Code of Japan also stipulates that "the res is rest corporales in this law." However, the concept of res is not prosecuted to the end in the code, and carries on the differentiation of the real property and chattel to the res in the article 86 of this code. The scholars think that invisible things such as natural force should belong to the category of the res, and which also be considered to be the object of real right. The Civil Code of Taiwan of our country also stipulates the object of real right is rest corporals, however, the scholars also think that natural force is the object of real right.Anglo-American law system divides the res into concrete thing and abstract thing, the concrete thing such as ox, steamer, house and car, etc.. The abstract thing can't be observed by the sense organ, but can only be imagined through thinking, including intellectual property rights such as the shares of the debt, company, patent and copyright, etc..Part two: Analysis of the dispute of theories of the object of real right.With determining the circle of res as rest corporals in the Civil Code of Germany, the discussion of the object of real right among the scholars intensifies day by day. Summarize to say, there are three kinds of different theories, the first one is "narrow sense res theory", the second one is "broad sense res theory", and the third one is "interests of property theory".The view of scholars holding the "narrow sense res theory" advocate that the object of the real right is res, and in principle it is res corporales. Not only it is difficult to meet the economic and social development in this theory, but also obscures the object of ownership and object of real right, and equates the object of ownership with the object of the real right directly. The view of scholars holding the "broad sense res theory" think that the object of the real right is res, which includes res corporales and res incorporales. Though it meets the developing needs of economy, once the object of ownership includes res corporales and res incorporales at the same time, the result will lead to the concept of ownership goes wrong. The view of scholars holding the "interests of property theory" abandon the existing concepts, and propose the object of real right for the interests of property. However, the object should be the carriers of interests, but not interests. If the object of right is interests, and the right is also interests that the law protects in essence, then, the right and the object of right will be equivalent, it is contradictory on the logic.Part three:In the third part, the thesis analyses the focus of dispute concerning the object of real right.According to the opinion of every theory, the focus of dispute concerning the object of real right is mainly the intension and epitaxy of the concept of the res, as well as whether the right can be the object of right. Though there are quite many scholar's definitions of the res, it has three parts in common. First, the res exist not including the human body. Second, it can be controlled. Third, it has economic worth. The author thinks that it should be the objective reality res, and can be controlled and has economic worth as the object of real right. Therefore, the res should be defined as: The objective reality res with economic worth that can be controlled outside the human body existing. Following the strong influence of science and technology for life, the new res has already entered people's control and been used with the help of science and technology. So the expansion trend from tangible res to invisible res has appeared as the res of the object of real right.The theories about the essential opinion of the right are different. "legal strength theory" becomes to generally explained, which thinks the essence of the right is the strength in law of enjoying particular interests. According to the theory of the object of right of the Karl Larenz, the right can become the object of real right. The right just can't be the object of ownership. The author thinks that the right can become the object of real right. To some extent this conclusion is approved not only in theory, but also in legislative practices. For instance the concept of "real right of the right" in Germany's civil law, including right usufruct and right mortgage, etc..Part four:The thesis concludes the object of real right in the perspective of type of real right.Though the scholars have made different asserting to the object of real right, still there is a weak point more or less. The scholars always confirm the object of real right with the object of ownership while discussing the object of real right, and often ignore the object of jus in re aliena. Because of this, the authors thinks that the discussion of the object of real right should be treated distinctively for avoiding taking a part for the whole and causing logical awkward circumstances, and distinguish the object of jus in re aliena to the object of ownership.Ownership is in the centre position in the real right system, because ownership is bearing the function of distinguishing with other property rights. The author thinks that the definition of the object of the right of ownership should avoid the logic contradiction of the ownership of the right, and exclude the right from the range of the object of ownership, and keep the opening of the object of the ownership in order to meet the economic and social development.Compared with ownership, the purpose of jus in re aliena mainly lies in realizing the economic function of property rights such as the ownership, creditor's rights, intellectual property right, etc.. The jus in re aliena is divided into usufruct and security rights. The usufruct controls the use value of the object, its purpose is to use the object and obtain interests from it, and the security rights controls the exchange value of the object, its object's marketability is significant to it. Because of this, the author thinks, the range of the object of usufruct not merely includes real property and chattel, some property rights can also become its object.As to the object of security rights, the author thinks that it is not correct that the traditional theory considers the object of real property of security rights and the object of chattel of security rights as real property and chattel. Based on the theory of separation of the powers and functions of ownership and the theory of different level object of right, the object of real property of security rights and the object of chattel of security rights should be ownership. Hereby, the object of security rights is property rights.