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On The Claim Of Real Rights

Posted on:2011-01-03Degree:MasterType:Thesis
Country:ChinaCandidate:Y M WangFull Text:PDF
GTID:2166360305481620Subject:Civil and Commercial Law
Abstract/Summary:PDF Full Text Request
The institutional design for the protection of real rights has been regarded as a significant and difficult issue in the researches of civil law. The claim of real right originated from Germany is subject to various forms of adaptations when adopted by other countries. Therefore, it is of necessity to analyze the historical background and the process of its"discovery", and trace back to its concepts and nature in order to unveil the blind of it,and finally testify the reasonableness for the claim of real right as one protective way of real rights. Meanwhile, the position of the protective mode of real rights in the Real Right Law and the Tort Law should also be included in this thesis.This thesis is divided into four parts.Part One is devoted to introducing the development and the current legislation of the system of the claim of real right. This part begins with the basis of the concept of the claim of real right, that is,"Actio"in the Roman Law. Then the thesis sets forth the discovery of the concept of claim of real right by Windscheid with special analysis of its concept. And then the author illustrates the theory and legislation of the system of claim of real right or the protective ways of real rights in various countries or districts, especially focusing on the attempts made by German scholars on this subject, which serves as the theoretical basis for the following discussions on the concept and nature of the claim of real right.Part Two firstly conducts an analysis of the viewpoints of German and Japanese scholars on the concept of the claim of real right and that of Chinese scholars, and emphasizes that a thorough understanding of the nature of the right of real claim should be based on the comprehensive understanding of the generation, object, scope and other contents of the claim of real right. One has to figure out the question of whether the claim of real right is the one kind of real rights or creditor's rights before commencing with the analysis of the nature of the right of claim. Generally, this part makes a comprehensive demonstration of the nature of the claim of real right as one kind of real rights by testifying the reasons for defining the right of real claim as one kind of real rights and counter-proving the error of seeing the right of real claim as one kind of creditor's rights.Part Three firstly states about and briefly comments on the theoretical discrepancies of the protective modes of real rights, which leads to the conclusion that for the purpose of correctly demonstrating the reasonableness of the system of the claim of real right as the protective mode of real rights, one must present the reasons from three aspects, namely, the independent value of the right of real claim, claim of real right and the liability for tort, and the exclusion of the claim of real right from the system of liability for tort which is free of liabilities. The thesis upholds the idea that the system of the claim of real right, as a complete protective mode of real rights, is systemic and advantageous and should be determined as the best protective mode of real rights.Part Four sets to discuss the protective modes of real rights in the Real Right Law and the Tort Law. The system of the claim of real right set in the Real Right Law is faced with various kinds of problems in terms of its categories, its poison in the Law and its nature as one protective way of real rights. In the Tort Law, the protective mode of real rights used in the General Principles of the Civil Law is adopted, which establishes the system of liability for tort, including the protection of absolute titles.
Keywords/Search Tags:claim of right, protective mode of real rights, claim of real right, liability for tort
PDF Full Text Request
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