Discussion On The Model Of Real Right Alternation In China

The model of real right alternation is one of the most important questions in real right law. How to set up the model of real right alternation in China has always been a hot topic in civil law. China is a country whose civil law has developed so late that it must carry out other countries' law in a wide range. In the academic circle of China, from the very beginning the discussion of on the choice for the model of real right alternation has focused on the object of law to study. In this paper, by introducing the characteristics of four models of real right alternation, inspecting the history of our country's real right alternation, considering the reality of our country, the model of real right alternation is researched which is suitable to the condition of China.There are several parts in this paper. The preface introduces the writing background, writing meaning, writing methods and writing contents. In the first chapter, it introduces the basical theory of the model of real right alternation, such as the basical conception relating to the model of real right alternation-- the establishment, the alternation and the termination of real right and the definition of the model of real right alternation, and also analysises the reason and significance of real right alternation. It's prepared for the following discussion. The second chapter is comparision of models of real right alternation. In this chaper, we pay attention to the models of real right alternation in continental law system and common law system. By introducing the represententive countries' law of four models of real right alternation, we find out the characteristics of the four models of real right alternation. And so we have a clearly knowledge of their advantage and disadvantage. In addition, We introduce the content of the theory of juristic acts of real rights for the discussion. Because China is belong to the continental system, we pay more attention to the models in the continental system. The third chapter is the history of the models of real right alternation in China. We run back the history of Chinese real right alternation, including the real right alternation of pre-Ming and Qing Dynasties, that after the Founding of the PRC, that in General Principles of the Civil Law of the PRC and that in Real Right Law. This chapter makes history preparation for the following chapter. The fourth chapter is building of our model of real right alternation. The importance of ownership requires that we must adhere to the formalism of real right and the basic status of the ownership decides that we make the formalism of creditors' right as the basical model. Howerever, because of the complexity of the situation in China, we should not adhere to only one model. In the field of jus in re alienca, if it doesn't involves the third part or it's not against the traditional practice in China, we can take le principe du consensualisme of creditors' right. As for there are some disadvantag in le principe du consensualisme of real right and formalism of creditors' right, we can draw the advantages from the formalism of real right. I think this model can promote the development of our China's socialist economic. And I hope this can provide a little suggestion for future civil law.