Study On Some Problems Of Real Confirm Claim

The nature of real confirm claim has always been a controversial issue in the legal field, as law specialists' opinions differ extensively on "whether real confirm claim falls into category of right of real claim".Domestic legal theoreticians tend to use right of real claim as reference while studying real confirm claim, categorizing the nature of it into that of the former. Though Property Law article 33 has clearly defined real confirm claim, there still remains a series of theoretical and practical problems to be settled.Firstly, on the nature of the real confirm claim, the thesis points out the significance and purpose of studying real confirm claim through analyzing the theoretical values and judicial practices, while introducing its study content and methods; Then, from the perspective of civil law protection, based on the stance of legal pragmatism, the writer introduces his opinions on various theories about the nature of right of real claim and real confirm claim, and points out that the nature of real confirm claim is neither right of real claim nor right of procedural law. Instead, it is a protectional form of property rights by civial procedural law. It depends on relief by public force.Secondly, starting from subjects, objects, and contents which form the three constitutional factors of real confirm claim, the article treats the substance of real confirm claim and concludes that the definition of real confirm claim should be based on theory of subject of Action of confirmation in civil procedural law. Interest is considered as a major part of the standard of its objects. Conclusive points about objects are: not only content and ownership should be treated as objects, but the legal relationship as well, and as to the content of real confirm claim, it consists of right of own property and other property right. Meanwhile, the writer also explains the legislative reason of real confirm claim, as stipulated by lesgistative law of property rights.Finally, from the basis of definition of nature of real confirm claim and analysis of its institutional intension, the writer takes a broader perspective sight of civll procedural protection, make analysis of issues concerning precedural law of real confirm claim, and bring about some corresponding methods and legislative suggestions of it.