Theoretical Foundation Of Abstract Juristic Act

Juristic act can be divided into the causative juristic act and the abstract juristic act, based on whether the"cause"is regarded as a prerequisite of effectiveness. While why do the acts of disposition base on the abstract principle the act of liability almost not? Whether the classification, by German law, about causative act and abstract act is reasonable? Although both are compassed in the debt guarantee system, why do not security contracts follow the abstract principle, while juristic act of real right, such as the creation of mortgage right and pledge right, do? To answer the foregoing questions and explore the full meanings of abstract principle, this paper compares the relationship between the causative principle of the act of liability and the abstract principle of the act of disposition. This paper concludes that the"cause"in abstract principle and the one in causative principle are not identical concepts and do not concern identical problems. The abstract principle is about the causality between legal fact and legal effect. The importance of the abstract principle thrusts itself into attention only when multiple juristic acts relate to a single legal effect. As a corollary, the abstract principle also has an application in the act of liability. Abstract principle is the consequence of the coexistence of two separate juristic acts. This paper consists of three parts which is Introduction, Body and Conclusion. By comparing justa causa and causa, this paper proposes and proves the theoretical foundation of abstract juristic act– the corresponding relationship between juristic act and legal effect.The introduction sets forth the situation of current academic researches on the juristic act of real right and the abstract contract, and then expatiates on the subject and purpose of this paper, which is different from other papers on the juristic act of real right.The first part compares justa causa and causa by examining the development history. Put it specifically, it first analyzes the variation mode of real right in Roman law, and the theoretical foundation of Savigny's independent and abstract principle of juristic act of real right as well. It concentrates on the relationship between legal fact and legal effect, about which the abstract principle concerns. Second, this part analyzes the origination of and the problems resolved by the causative principle of the act of liability. Third, this part then proves, by comparison, that the concept of"cause"in the abstract principle and the causative contract are adopted respectively by different meanings. At last it demonstrates that the causative principle, as a counterpart of the abstract principle, is beyond the variation mode of German legal system and not the"cause"used in the act of liability.The second part summarizes the relationship between the act of liability and the"cause"act. As the abstract principle and the causative principle do not have overlaps, then comes out another question logically– whether, in the act of liability, there is a"cause", with a similar meaning with the one in the act of disposition. And such a question comes out only when there are two intersecting juristic acts at least. Therefore, this part turns to analyze the relationship between the two intersecting juristic acts, by using specific acts of liability, such as alteration of obligation, assumption of liability, signing of security contract, and acknowledgement of debt, as illustrations. In a line with the meaning of"cause"adopted by the abstract principle, this paper, in the end of this part, proves the existence of the abstract act of liability, and generalizes the common characters of the abstract act of liability and the abstract act of disposition, and furthermore proves the theoretical foundation of the abstract juristic act.The third part, with a focus on displaying the disrupted cause-and-effect relationship between legal fact and legal effect, analyzes the embodiments of the abstract principle, particularly in the legislations of P.R. China. The existence of the independence-and-abstract principle of real right is a mooted point and still fiercely debated, and few scholars support the abstract principle. In real, this issue is simply an issue of academic interpretation. The abstract principle of the juristic act of real right is accepted and confirmed, which can be revealed by interpreting the in-effect legal provisions. Otherwise it makes no sense to the application of law.Conclusion is a summary of the full text.