Research On Mechanisms Of The Civil Protection Of Real Right

The legal protection of real right is an extension of a wide range of legal areas,as a whole,the legal protection of real right can be divided into private protection and the protection of public law.The protection of public law can be divided into the protection of criminal law and the protection of administrative law.Private law mainly reflects the civil law protection,the civil law protection of real right is to regulate right of protection and methods by civil law and to remove the illegal infringement to property and to restore the successful disposal of property person or to receive value compensation.The model adopted by civil law to protect the property can be divided into the Legislation model of claim of real and the legislation model of claim of tort.The means of property protection can be divided into means of claim of real and claim of tort.This article is divided into five parts.The first part of the article is the principle adopted by civil law to protect property. Firstly,in the part to generalize the basic meaning of the principles of equal protection and the legal basis as well as the specific embodiment in "property law",and then to propose the principle of equal protection that is important meaningful and useful to protect property;Secondly,to briefly introduce the meaning of principle of good faith and the prohibition of right,to focus on the relations between the two principles and the civil protection of real right,and to propose that the two basic principles must be followed for protecting property.The second part of the article is the model adopted by civil law to protect property. First of all,the writer summarize several theories of the name of the model adopted by civil law to protect property,and proposes the model adopted by civil law to protect property that means legislation model of claim of real,the model of claim of tort as well as legislation choice model of dual of combining claim of real and claim of tort; Secondly,the model of civil protection of real right is divided into the Legislation model of claim of real and the legislation model of claim of tort.To generalize the Legislation mode of claim of real and the legislation model of claim of tort on the basis of the analysis of characteristics and the meaning of them,and to comparatively analyze claim of real and claim of tort.Finally,To bring forward that the legislation model of property protection in our country can learn from model of property protection of "the German Civil Law",its model means dual model of the system of both the claim of real and claim of tort to protect the property.The third part is the means of property protection.In this part to dissert firstly the meaning of the means adopted by Civil Law to protect property,and then to analyze the relation between the model adopted by Civil Law to protect property and the means of property protection.And to propose that the means adopted by civil law to protect property is for the property person to take protection measures to protect their property.And the model adopted by civil law to protect property is the model of civil legislation.Finally,to introduce five means adopted by civil law to protect property.The paper focus on the elements of civil protection of real right and can be the applicability of limits of action or not,as well as issues such as cost and fruits and so on.The forth part is the assessment of protective mechanisms built by "property law". First,the part assesses deeply the property protection in Chapterâ…¢to find shortcomings and put forward that the system of claim of real right should be under the part of ownership and to change the name of chapter of protection of real right into the claim of real right,to exclude from regulation which confirming the claim of real right and the claim of compensation for damage,and to increase the rule of costs and fruits of the claim of real right;Secondly,the part analysis ration and the inadequacies referring to the regulation of state ownership in the chapter of "State ownership and collective ownership,private ownership" to propose that "State owned capitals Law" the relevant "judicial interpretations" should be introduced to protect state-owned capitals. Partâ…¤dissert improving mechanisms of the civil protection of real right.Firstly,to rename claim of real right into claim based on ownership is more stringent based on the previous analysis,and to set a chapter of the claim of based on ownership in the part of ownership,in which specifically regulating the means of Civil protection of real right and protection of right over the property of another were placed in the part of his property to make provisions invoked;Secondly,to amend and improve the provisions of Chapterâ…¢of real right:the claim of the original return and claim of excluding prejudice and claim of the elimination of the risk and claim of restitution are not applicable limits of action,but the claim of the original return should apply to the acquisitive prescription and rule of the costs and fruits issues to protect the above claim of real right.The protection of right over the property of another includes:superficies can be permitted the claim of the original return and claim of excluding and eliminating the risk,and the right of easement should not enjoy claim of the original return but can enjoy the claim of excluding and eliminating the risk.Mortgage can not be permitted to claim of the original return and the claim of excluding prejudice and eliminating the risk but Chattelmortgage can be.Right of lien can not be applied to return the original but can be applied to the claim of excluding prejudice and eliminating the risk;Finally,to proposed to amend relevant regulations of real right and to develop "State owned capitals Law" and introduce the corresponding judicial interpretations.