Research On The Right Of Claim For Dividing Co-ownership

The right of claim for dividing co-ownership is a special civil right, which refers to that co-owners have the right to dissolve the co-ownership of co-owned property in a certain way and then to conduct liquidation, therefore the right is like a bridge collecting co-ownership and single ownership. For the right and the process of exercising the right themselves involve many legal issues, this thesis only studies relevant theoretic issues and practice issues of the right according to related theories about Civil Law and Civil Procedure Law, like the theory about Real Right Law. The thesis researches in detail the nature and exercising method of the right, procedural safeguard, interest balancing and the certain and probable restrictions during exercising the right and the legal consequence of exercising the right, etc., in addition puts forward some suggestions in relevant parts of this thesis. Besides for the chapters of preface and conclusion, the thesis consists of other four chapters.In chapter 1, the right of claim for dividing co-ownership is generally described. Firstly, the rights respectively in Roman law and Germanic law are generally investigated; secondly, the theoretic basis of the right—the obvious inward share of the co-ownership by shares and the potential inward share of the joint co-ownership are discoursed upon in detail; thirdly, the value of the right is clearly illustrated; finally, the nature of the right is discussed in detail. As for the nature of the right, there are the right of claim doctrine and the right of formation doctrine, and the author adopts the later and elaborates the reasons. As for the relationship between the right and statute of limitation, the author considers it as an insignificant issue.In chapter 2, issues about the right of claim for dividing co-ownership are analyzed, like exercising way, procedural safeguard, etc. Firstly, exercising the right by agreement and relevant issues are discoursed upon, and the nature of dividing agreement, interaction between dividing agreement and dividing by litigation, the relationship between the right of claim and statute of limitation under the dividing agreement, etc. are discussed; secondly, exercising the right by litigation and relevant issues are investigated, and the nature of the dividing litigation, litigation object, preservative measures in litigation, dividing method, writing of judgment text and civil enforcement corresponding to related dividing method are discoursed upon in detail in order to improve the procedural safeguard of the right of co-owner, for which the author gives some opinions; thirdly, other issues about exercising the right are discussed, like consolidating exercises of several rights, establishment of a new co-ownership, the procedure of exercising the right with interested parties, exercising the right by subrogation, the right in the continuance of common relation, etc. are discussed, for which the author gives some opinions.In chapter 3, restrictions during exercising the right of claim for dividing co-ownership are analyzed. In principle, the right shall be exercised without any restriction, however in exceptional cases, the right is restricted. Firstly, restriction on the right by the undividable agreement is discoursed upon and relevant issues about the undividable agreement are investigated; secondly, restriction on the right by the use purpose of property is illustrated; thirdly, whether and to what extent the right shall be restricted by seizure of movable property and restrictive registrations, like the registration of an objection, the forenotice registration, the registration of seizure, etc. are discoursed upon in detail; finally, the restriction on the right by the agreement on share of management is discoursed upon.In chapter 4, the legal consequence of exercising the right of claim for dividing co-ownership is analyzed. Firstly, happening of dividing effect and obtaining time of single ownership are investigated, and as for the dividing effect the author adopts the right transition doctrine; secondly, considering the probable loss of the beneficial interest of co-owner during dividing property by pecuniary compensation or by evaluation, the author proposes to establish the system of the right to mortgage in legislation, which endows the obligee of compensation with the legal mortgage of property that is divided to the obliger of compensation; thirdly, considering establishment of the usufructuary right or the real right for security on co-owned property or inward share, the author discourses upon the legal consequence of the usufructuary right or the real right for security after exercising the right (taking the right to mortgage for example ), and besides for the mechanism of interest balancing between mortgagee and mortgager of inward share, the author proposes to additionally establish the mechanism of interest balancing between co-owners of inward share; finally, the liabilities to guarantee right-related flaw and property-related flaw are discoursed upon.