The Denial Of The Existence Of Real Property Right Activity In Chinese Civil Legislation

The purpose of this paper is to raise the independent opinion and proof to the current disputes in the Chinese Law regards concerning the existense of real property activity in the Chinese legislation, and conclusively prove that there is no real property activity in the Chinese legislation.The mode of real property alteration in one country's legislation.will have a great and profound influence to the numerous transactions in the daily life,concerning the safety and happiness of its general public.While various kinds of modes of real property alteration have great differences in the process of transaction and the right protection of traders.The selection of a mode of real property alteration, which can satisfy the needs for quick transaction and can be easily understood by the general public,has an important meaning to the transactions happened everyday.Therefore,the research over the selection of the mode of real property alteration in our legislation and whether the real property formalism alteration mode from the German civil law has been taken,is quite necessary.The author,based on the history of real property activity theory development,reviewed the change from'mancipatio" in jure cessio'to the 'delivery'in Roman Law,'Auflassung"s influence to the real property right change in German Law and the foundation of real property activity theory in the German Private Law of recent time.At the same time,the author made a dissertation to the three major principles of real property activity,means the independent principle,the abstract principle and formalism principle, pointing out that real property activity shall include the agreement of real property right and the public notice methods.Over this foundation, we made a explanation to the acts in the "General Principles of Civil Law" and "Contract Law"which are thought to have admitted the real property right activity and reach the conclution that they have not admitted the real property right activity.After that,we explained the Act 15"Districtive Principle"and Act 139"The Establishment of Construction Land Use Right"in the "Real Property Law",proving that there's no real property right activity in our legislation.In our current civil legeslation, the mode of of real property alteration is the agreement between the traders and the public notice methods leading the change of real property right.The reason for the provement to the existense of real property activity in the Chinese legislation by some scholars is that,they have been affected by the districtive principle between the real property right alteration and obligatory right alteration and the abstractive principle in the real property activity.These scholars tried to prove the existense of real property activity by proving that the agreement of real property right leading to the real property right alteration.However, they either use the thinking method of German Civil Law to explain the problems in Chinese Civil Law or confused the districtive principle in the real property right activity with the districtive principle in the obligatory right activity.ln this paper, although we think that there's no real property right activity in Chinese legislation, the districtive principle and abstractive princile in the real property right activity theory will still have extremely important impact to the legislation of Chinese Civil Law Code.